Allahabad High Court
Public Service Commission U.P. And ... vs State Of U.P. And 3 Others on 4 July, 2019
Equivalent citations: AIRONLINE 2019 ALL 1540, (2019) 9 ADJ 810 (ALL) (2020) 1 ALLCRIR 273, (2020) 1 ALLCRIR 273
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Court No. - 18 A.F.R. Case :- CRIMINAL MISC. WRIT PETITION No. - 15885 of 2019 Petitioner :- Public Service Commission U.P. And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Avneesh Tripathi,Anoop Trivedi (Senior Adv.),M.N. Singh Counsel for Respondent :- G.A. Hon'ble J.J. Munir,J.
Hon'ble Anil Kumar-IX,J.
(Delivered by Hon'ble J.J. Munir, J.)
1. Secrecy in the day of transparency is the theme of the controversy that has brought the State, in the exercise of its police power to investigate a crime in conflict with the petitioners, the Uttar Pradesh Public Service Commission (for short, the Commission), a Constitutional Body charged with the responsibility of holding examinations for recruitment to various public services under the State.
2. The Commission represented by its Secretary and the Secretary to the Commission are the two petitioners here who have brought the present petition under Article 226 of the Constitution seeking to quash a written order dated 31.05.2019, issued under Section 91 Cr.P.C. by the Circle Officer, Pindara/ Investigating Officer, Special Task Force, Varanasi in Case Crime no.172 of 2019, under Sections 406, 409, 420, 120-B IPC and Sections 7, 8, 13 of the Prevention of Corruption Act, 1988. By the said order, the Secretary to the Commission, has been directed to disclose certain information and produce certain documents, concerning the aforesaid crime. The aforesaid order is hereinafter referred to as the impugned order.
3. This Court proposes to examine the validity of the challenge laid to the impugned order on a brief reference to the background, in which it has come to be issued; unnecessary detail of all that has transpired in the matter of investigation in the crime so far, being eschewed. The Commission invited applications for recruitment to posts of Assistant Teachers (L.T. Grade) vide Advertisement dated 15.03.2018 bearing no. A-1/E-1/2018. The said post were to be filled up by the Commission through a Combined Written Examination scheduled to be convened by them on 29.07.2018. The total number of posts advertised was a figure of 10768. The Examination aforesaid being a combined examination was conducted to select Assistant Teachers, in varied subjects on the same day.
4. It is the Commission's case that they were in receipt of a large number of the applications, with candidates far greater in number than expected to sit the written examination, aforesaid. As the Commission themselves say, in order to manage such massive numbers, ensuring fairness in the process, and to prevent misconduct during the course of examination, the Commission requested the State Government to provide a team of police officials, specially tasked to manage a fair and forthright conduct of the said examination, keeping the law and order situation at different centres of the examination under the vigil and control. Accordingly, the Government provided a Special Task Force for the purpose, who manned their post on the date of examination.
5. The Commission have complained in the facts asserted in the Writ Petition that the Special Task Force of the police inter-meddled with the decisions of the Commission from the inception of the examination, instead of discharging duties assigned to them. What appears from the facts is that the Senior Superintendent of Police, Special Task Force sent a Whatsapp message a day before the scheduled examination, to the Secretary of the Commission, petitioner no.2, informing the latter that the relative question paper has been leaked by some gang of men into the murky trade of solving leaked question papers, and that some 50 candidates, who were to sit the examination the following day, have been provided the leaked question paper. It is also asserted that a copy of the allegedly leaked question papers was sent to the Secretary. The Commission and the Special Task Force are at serious issue whether the question paper was, indeed, leaked by an organized gang into this murky business, with the Commission maintaining a stiff stand that the question paper propounded by the Special Task Force as a document allegedly leaked to 50 candidates, did not match the question paper, that was opened and distributed to the various examinees at the Examination Centres. The Commission say that this comparison was done between the specimen of the allegedly leaked question paper, supplied by the Special Task Force with the actual question paper in the subject of Hindi, and no similarity was found. It is asserted by the Commission that the entire examination was conducted in a transparent and fair manner at 6171 Examination Centres of the State, where 7.2 lakh candidates sat the Examination.
6. Beyond this stage, it appears that there was a sharp difference not only in the intelligence inputs and information of the Commission, but opinions as well, between the Commission and the Special Task Force as regard the fidelity of the examination held on 29.07.2018. While the Commission maintained that the Examination was held in a fair and transparent manner with everything about it being sacrosanct as ever, the Special Task Force issued a pressnote, the day the Examination was held saying that malpractices were adopted where there was impersonation by professional solvers, employment of electronic devices, leaving the OMR Sheets blank to be filled up with the involvement of the officials of the Commission etc. Regarding leakage of the question paper, it was said in the pressnote that a gang of solvers in some unknown closed space, had read out the question paper to a large number of examinees, who had thereafter written the Examination. This constant pursuit by the Special Task Force, of whatever information they have got about leakage of the Examination Paper and other malpractices led, a copy of the question paper claimed to be leaked by the Special Task Force falling to the hands of one Vijay Nath, a candidate at the Examination. He filed a writ petition before this Court asking the entire Examination process to be quashed and conducted afresh, being Writ - C No.17183 of 2018, Vijay Nath and another vs. State of Uttar Pradesh and others. In the said petition, the Commission filed a return dispelling the allegation of leakage of the question paper, by which at that time the State also stood, but it appears that the Special Task Force who were on trail of the information as to leakage were able to trace it to a certain Blessing Secure Press Private Limited, Kolkata. This came about in consequence of a dismissed employee of that press, one Ashok Deb Choudhary, may be not for so holy a reason, moving the police under Sections 154(3) and 36 Cr.P.C., and failing there, the Additional Chief Judicial Magistrate, Biddhan Nagar, Kolkata through MP Case no.75 of 2018, under Section 156(3) Cr.P.C., complaining of leakage of the said question paper, with allegations against one Kaushik Kumar Kar, a consultant with the Secure Press in question and two other employees, Smt. Arti Mitra and Ranjeet Prasad. The Magistrate ordered the police to register an FIR on the basis of allegations made in the petition under Section 156(3) Cr.P.C. before him, but it appears that on a criminal revision being filed from the said order to the High Court of Calcutta, being CRR no.2714 of 2018, the High Court stayed proceedings for a period of six weeks vide order dated 12.11.2018. The said order has subsequently been extended on 28.01.2019 for a further period of eight weeks. It is not known whether it has been extended beyond eight weeks, which reckoned from 28.01.2019, would now be over.
7. At this stage, it must be remarked that the learned counsel for the petitioners has made much about the fact that Ashok Deb Choudhary, who moved the police and the Magistrate at Biddhan Nagar, West Bengal, in respect of the leakage of this question paper, was a motivated complainant as he was a dismissed employee of the same Secure Press. He had, therefore, a grudge and score to settle. It may be that Choudhary made that move out of personal grudge and ill-will, but what is relevant is what he said was truth or falsehood for even a man with a bad motive may have the right thing to say. In any case, the proceedings commenced at Biddhan Nagar do not appear to have fructified into an investigation, as they commenced on a judicial order and were interdicted by an order of the High Court.
8. The record shows that the Special Task Force was on trail of this crime and the proceedings at Biddhan Nagar by the dismissed employee of the Secure Press, Ashok Deb Choudhary, lent support to whatever the Special Task Force had found. We would wish to revert back in time a little earlier, to the point where the Special Task Force had issued a pressnote that the petitioners have condemned almost as irresponsible, by their stand taken in the writ petition. However, in all fairness, the petitioners have annexed a copy of that pressnote as Annexure - 2 to the petition, that shows that the Special Task Force quite early apprehended a total of 51 members of various gangs into the murky business of leaking and solving question papers, and who were involved behind what the Special Task Force found to be a case of leakage of the question papers relating to the Examination in question. A reading of the aforesaid pressnote shows that the work of the Special Task Force, or their conclusions, cannot be triffled. It carries full particulars of names, parentage and address of members of that organized gang who were involved in the question paper leakage, and were arrested by the Special Task Force. It includes some candidates, a few doctors, pharmacists, some mediators, some heads of the various gangs, including professional question paper solvers. There is also a summary of recovery made from these arrested men, of odd items, some of which are fake AADHAAR Cards also. The recovery also involves a copy of the seating plan in the Examination Hall. The Special Task Force have in the said note given a detail of the information they had with them, including the modus operandi of the gang. It was indicated in the pressnote that First Information Reports with the local police at Lucknow, Allahabad and Kanpur Nagar, under Sections 419, 420, 467, 468, 471, 120-B IPC and Section 66 of the IT Act, were in the process of being registered.
9. This Court has not been apprised as to how many First Information Reports were registered on the basis of the arrests made by the Special Task Force way back on 29.07.2018, nor is it that much of this Court's concern, as this Court in the present petition is confined in its consideration to the validity of the written order (the impugned order) under Section 91 Cr.P.C., issued by the Special Task Force to the Commission in Case Crime no.172 of 2019, under Sections 406, 409, 420, 120-B IPC, Police Station Cholapur, District Varanasi. This First Information Report was apparently registered at a later stage, after much more facts were found beyond what was in hands of the Special Task Force regarding leakage of the question paper relating to the Examination in question, way back in July, 2018. There was also information about the involvement of the Controller of the Examinations of the Commission, in this unholy racket of committing breach of confidentiality of this selection examination, and it figures from this First Information Report that Smt. Anju Katiyar, Controller of Examinations of the Commission being found involved, has been arrested in connection with Case Crime no.172 of 2019 (supra).
10. It would be of particular relevance to refer to the fact that Kaushik Kumar Kar, the Consultant of Blessing Security Press, was tipped of to be moving around in Varanasi on 27.05.2019, along with some accomplices of his, and acting on that tip off again from Ashok Deb Choudhary, the Special Task Force apprehended him at 8.15, in the evening hours. Amongst many other things recovered from him, that may or may not be of much relevance, the original question paper of the Uttar Pradesh Public Service Commission relating to another examination, sealed in white cloth, besides a sample booklet and old question papers that he revealed were to be printed for the Commission, were recovered from him. The sealed pack on being opened up and examined led to discovery of the original question paper in the form of an OMR Sheet relating to Subject Code 30 - General Study in, and a question booklet relating to Field Work/ Social Work, Set - A, two other booklets upon which was written TEV - 2016 with two separate Codes 08 and 025. Another booklet showed it to relate to some Forest Department Examination.
11. The aforesaid recovery shows that despite so much of a strong cloud of suspicion having descended upon the credentials of Blessing Secured Press Pvt. Ltd., the Controller of the Examination of the Commission, or for that matter the Commission themselves were permitting the same Secured Press to print for further examinations to be held. In his statement to the Special Task Force, that is part of the First Information Report in the crime under reference, Kaushik Kumar Kar detailed his involvement, and that of the Controller of the Examination of the Commission, Smt. Anju Katiyar in the following words:
"पुछताछ पर कौशिक कुमार कर ने बताया कि वह अपनी मौसी आरती मित्रा पत्नी स्व० वाणिन्द्रो मित्रा नि० दरबारी काम्पलेक्ट गंगा नगर कोलकत्ता की कम्पनी ब्लेसिंग स्क्वायर प्रेस प्रा०लि० का मुख्य कर्ता-धर्ता है। यह कम्पनी काफी पुरानी है जो कि देश भर की विभिन्न प्रदेशों के सरकारी/ गैर सरकारी प्रतियोगी परीक्षाओं के प्रश्न पत्र छापने का काम करता हूँ। मैने उत्तर प्रदेश मे वर्ष 2018 में एलटी-ग्रेड (शिक्षक भर्ती) की हुई परीक्षा का प्रश्नपत्र भी छापा था। जितने प्रश्नपत्रों को छापने का आर्डर मुझे मिला था उससे कुछ अतिरिक्त प्रश्नपत्रों को छापा था। उक्त प्रश्नपत्र को मैने अपने सहयोगी रंजीत प्रसाद व गणेश प्रसाद शाह, संजय कुमार के माध्यम से परीक्षा के एक दिन पूर्व 28 जुलाई 2018 को लगभग 50 लड़कों को वाराणसी में हल करवाकर पढ़वाया था और प्रश्नपत्रों को हल कराकर पढ़ाने का प्रति लड़का 2.5 से 5 लाख रुपये मुझे देना तय किया गया था जिसके लिये मैने पेपर लेकर अपने सहयोगी अशोक देव चौधरी को भेजी था। यहां पर बनारस मे लोकल सहयोगी के रूप में संजय, अजीत चौहान, अजय चौहान, प्रभुदयाल को जिनका पुरा पता रंजीत प्रसाद को है, पेपर दिनांक 28 जुलाई 2018 को पढ़ाने के बाद रणजीत प्रसाद ने मुझे 50 लाख रूपये दिया तथा बताया कि लड़कों के हाई स्कूल, इन्टर, स्नातक आदि के मूल शैक्षणिक प्रमाण-पत्र मेरे पास बतौर गारन्टी जमा हैं। रीजल्ट निकलने के बाद शेष पैसा प्रति अभ्यर्थी ढाई से 5 लाख रूपये मुझे देते। अशोक देव चौधरी को बहकावे तथा दबाव में लेकर भेजा था परन्तु अशोक देव चौधरी के विरोध करने के कारण पुरा काम बिगड़ गया। मैने यूपीपीएससी की परीक्षा नियन्त्रक सचिव अंजू लता कटियार को 5 प्रतिशत के हिसाब से रूपये देता था, दिनांक 26.05.2019 को बरामद प्रश्नपत्र प्राप्त करते वक्त उनको 10 लाख रूपये नकद देकर आया हूँ। अशोक देव चौधरी के मैटर से वह बहुत परेशान रहती थीं और इसके लिये मुझसे वाह्टसप और फोन पर पुछती रहती थीं उन्होने मुझसे यह भी बताया कि तुम्हारे कम्पनी के खिलाफ पुलिस मुकदमा लिखवाना चाहती है इसके बाद भी आगामी प्रतियोगी परीक्षाओं के प्रश्नपत्र छापने का कार्य दे रही हूं। इसके पश्चात उनके मोबाईल मे व्हाट्सप को खोल कर देखा गया तो Uppsc Coe Anju Katiyar एकाऊन्ट मिला जिसका मो0नं0 9140016717 व दूसरा नं0 9415547402 लिखा है जिसमें पुलिस इन्क्वाइरी सम्बन्धित वार्तालाप तथा स्पष्ट रूप से अशोक देव चौधरी के मामले के सम्बन्ध में पूछा गया है।
कौशिक कुमार कर का उक्त बयान तथा उसके अन्य सहयोगी साथियों की संलिप्तता घटना को प्रमाणित करता है तथा साथ में ही UPPSC परीक्षा नियन्त्रक सचिव श्रीमती अंजू कटियार संलिप्त रही हैं क्योंकि कौशिक कुमार कर के बयान, उसके वार्तालाप के व्हाट्सअप चेकिंग तथा जांच के दौरान उनसे किये गये एसटीफ द्वारा पत्राचार दिनांक 25.2.2019 में उक्त कम्पनी पर मुकदमा पंजीकृत कराये जाने की सूचना देने के बाद भी अन्य होने वाली परीक्षाओं के प्रश्नपत्रों की छपायी का कार्य दिया जा रहा है। यह पुरा कृत्य गिरोह बनाकर आपराधिक साजिश करके पेपर आऊट कराकर सदोष भारी लाभ कमाने का है जो कि अभ्यर्थियों के विरुद्ध आपराधिक कृत्य के साथ लोक हित के विरुद्ध भी आपराधिक कृत्य है।"
12. Now, it is the aforesaid background of facts that the impugned order has come to be issued where certain information as set out in the impugned order, has been required to be furnished by the Secretary of the Commission to the Investigating Officer of the Special Task Force. It is this order made under Section 91 Cr.P.C., to which challenge has been laid through this petition.
13. Heard Sri Anoop Trivedi, learned Senior Advocate assisted by Shri Avneesh Tripathi and Shri Mahesh Narayan Singh, learned counsel appearing for the petitioners and Sri S. K. Pal, learned Government Advocate assisted by Sri Patanjali Mishra and Sri Deepak Mishra, learned Additional Government Advocates appearing on behalf of the State.
14. Sri Anoop Trivedi, learned senior counsel has confined his challenge to the impugned order to the information that has been sought by the Special Task Force vide paragraphs 2, 4, 5 & 6 thereof. To the other information sought through the order, he has no objection. The edifice on which challenge to the impugned order rests, as urged by Sri Anoop Trivedi, learned senior counsel is a privilege claimed to the information sought, by virtue of Section 123 read with Section 162 of the Indian Evidence Act. Learned senior counsel submits that an order under Section 91 of the Code of Criminal Procedure, and hereinafter referred to as the ''Code', empowers any Officer In-charge of a Police Station, who considers the production of any document, or other thing necessary, or desirable for the purposes of any investigation under the Code to require the production of such document, or thing by the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it at the time and place stated in the order.
15. Sri Anoop Trivedi, learned senior counsel points out that under this provision, the Court also has power to summon a document or thing of a like nature as an Officer In-charge of a Police Station undertaking an investigation under the Code. He says that more appropriately said, it is the Officer In-charge of a Police Station, who has a like power under the Code as the Court has, to summon a document or thing in the possession of a person, with whom it is believed to be. It is pointed out that whereas a Court can summon a document in a case where an inquiry, trial or other proceedings are in progress before the Court, the Officer In-charge of a Police Station has a similar power under Section 91, to require production of a document, where he is seized of an investigation under the Code. He further points out that the process to be issued by the Court requiring production is a summons, whereas that by an Officer In-charge of a Police Station is a ''written order'. He submits that the impugned order under Section 91 of the Code falls in the category of a written order issued by the Officer In-charge of a Police Station, under Section 91.
16. It is argued by Sri Trivedi that the power, whether of the Court (for the purpose of inquiry, trial or other proceeding) or the Officer In-charge of a Police Station, to require the production of a document for the purposes of investigation is subject to limitations on that power, engrafted in the Statute by sub-Section (3) of Section 91. It is pointed out by him that sub-Section (3) aforesaid, clearly says that nothing in Section 91 shall be deemed to affect the provisions of Sections 123 and 124 of the Indian Evidence Act; the other provisions of the law are not relevant, according to the learned senior counsel. Learned senior counsel submits that Section 123 mandates that unpublished official records relating to affairs of the State, shall not be permitted to be tendered in evidence by anyone, 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. He submits that this privilege is about evidence as to affairs of the State. He further points out that Section 124 speaks about official communication and says that no public officer shall be compelled to disclose communications made to him in official confidence, where he considers that by the fact of such disclosure, public interest would suffer.
17. Sri Trivedi has further placed reliance on the provisions of Section 162 of the Indian Evidence Act, that relates to production of documents. He submits that an objection regarding production of a document that is in possession or power of a witness summoned to produce it, is compatible with the procedure in Court, where it is open to him to raise objection by virtue of Section 162 of the Indian Evidence Act to the effect that he may not be compelled to produce the document in Court, on whatever ground he seeks to object, including privilege of any kind, the validity of which the Court is obliged to decide. Sri Trivedi submits that before the Officer In-charge of a Police Station, or for that matter any Investigating Officer, there is no such procedure envisaged by law enabling the person claiming privilege to raise an objection or empowering the police officer to decide it. That power is with the Court alone, where a Court summons a document. He submits, therefore, that the power of a Police Officer by a written order to summon a document is to be read, subject to an objection as to privilege raised by the person in whose power a document is, which if raised is to be decided by a Court in appropriate proceedings and at the appropriate stage. He submits further that since in the present case the proceedings are at the stage of investigation when the police have chosen to exercise of their power of summoning the required documents under Section 91 of the Indian Evidence Act, regarding some of which, the petitioners claim privilege under Sections 123 and 124 of the Indian Evidence Act, the only forum available to the petitioners to raise an objection is through a petition to this Court under Article 226 of the Constitution. He submits that in those jurisdictions where investigation is permitted to be challenged under Section 482 Cr.P.C., the objection could also come in terms of a petition under Section 482 Cr.P.C., but not in Uttar Pradesh, where investigation can be challenged as per view of the law that holds field, through a petition under Article 226 of the Constitution alone.
18. Sri Anoop Trivedi, learned Senior Advocate raising a wider challenge to the power to summon a document under Section 91 of the Code has submitted that the said power, be it exercised by the Officer In-charge of a Police Station or a Court, is subject to a claim to privilege under Section 123 of the Evidence Act. In case such a privilege is claimed, no evidence derived from unpublished official record relating to any affairs of the State can be compelled to be given by a person In-charge, or in control of such unpublished public record, except with the permission of the Head of the Department concerned. For the said proposition, he has relied upon the provisions of Section 123 of the Evidence Act read with Section 162. He has also banked upon the provisions of Section 124 of the Evidence Act to submit that no public officer can be compelled to disclose communications made to him in official confidence, where he considers that public interest would suffer as a result of such disclosure.
19. This wider submission of Sri Trivedi that evidence derived from unpublished official record, cannot be permitted to be given by anyone, except with the permission of the Head of the Department concerned, is subject to a limited role for the Court to adjudge whether in fact the document comprising unpublished official record, relates to affairs of the State, and in case it does, to further examine whether the Head of the Department concerned has claimed privilege about that unpublished official record. If the Head of the Department has claimed privilege and the Court concludes that it is a document relating to affairs of the State, the Court has no power to compel its disclosure or production. The inquiry, therefore, by the Court is on very limited ground. He submits that a fortiori the same inhibition in case of unpublished official records, required to be disclosed during investigation by the Officer In-charge of the Police Station would apply, with the difference that decision on the point whether unpublished official records indeed relate to affairs of the State, and whether privilege, in fact over these has been claimed by the Head of the Department concerned, would have to be decided by a Court of competent jurisdiction. It cannot in the nature of things be the decision of a police officer, who has passed a written order, requiring that unpublished official record to be produced. In support of this submission of his, Sri Trivedi, relied upon the decision of the Supreme Court in State of Punjab vs. Sukhdev Singh Sodhi1. This submission of Sri Anoop Trivedi, learned Senior Advocate would be dealt with, a little later in this judgment. However, in order to appreciate the distinction between the first and the second submission of Sri Trivedi, it must be recorded that whereas the first submission makes the Court the ultimate arbiter of the validity of a claim to privilege over unpublished official records required to be produced by the police, or summoned by the Court, the latter submission goes way far ahead to say that the Court has in the face of a privilege claimed under Section 123 of the Evidence Act, a very limited authority; to clarify at the cost of some repetition, the Authority to judge alone whether the documents relate to affairs of the State, and further whether the privilege, indeed, has been claimed by the Head of the Department concerned. According to the latter submission, unlike the earlier one, the Court is not the ultimate arbiter on the question of privilege.
20. Before proceeding to consider as to which of the two legal propositions represent the true scope of the Court's power in the matter of dealing with a privilege claimed, and the further issue how that question is to be dealt with, in the contingency of a privilege set up in response to a written order under Section 91 of the Code issued by a Police Officer pending investigation, it would be apposite to deal with an objection raised by Sri S.K. Pal, learned Government Advocate, as to the maintainability of this petition.
21. Sri S.K. Pal, learned Government Advocate has submitted that the petitioners have laid challenge to a mere process during investigation by asking this Court to quash a written order issued under Section 91 of the Code, requiring the petitioners to disclose certain documents and information. However, the petitioners have not challenged the FIR giving rise to Case Crime no.172 of 2019, under Sections 406, 409, 420, 120-B IPC, Police Station Cholapur, District Varanasi. He submits that without a challenge being laid to the First Information Report and resultant investigation, of which the written order under Section 91 of the Code is but a mere process, requiring production of records and the disclosure of certain information for the purpose of investigation, a writ petition would not at all be maintainable. It is so, according to Sri Pal, as an order under Section 91 of the Code, is merely a process that is part of the investigation, that commences with the registration of an FIR, and pending investigation no process alone can be challenged unless the FIR giving rise to that investigation itself is questioned. This objection of Sri S.K. Pal is, to the understanding of this Court, specious.
22. In our considered opinion, it is so because neither the Public Service Commission, or the Secretary to the Commission, are accused in the said crime. Even otherwise, going by the nature of the crime, that involves individual acts, may be of one or two officials of the Commission in conniving with outsiders to commit the offences charged, a Constitutional Body, like the Public Service Commission, or the Secretary in his official capacity, as distinguished from an incumbent in that office in his personal capacity, would never be liable for acts of omission or commission amounting to corrupt practices, forgery, embezzlement, cheating, that are subject matter of the impugned FIR. It is quite another matter, to be said at the cost of some repetition, that individual functionaries or the officials of the Commission may be so liable. This petition has been moved on behalf of the Public Service Commission through its Secretary as the first petitioner and the second petitioner being the Secretary to the Commission, in his official capacity. There could be no reason for these petitioners to question the FIR, during investigation whereof the impugned order under Section 91 of the Code has been passed by the police.
23. The objection is not tenable for another reason. While it is trite to say that an order under Section 91 of the Code is merely a process during investigation, but to a person, particularly, a person from whom evidence derived from unpublished official records relating to affairs of the State is called for, would have every right to challenge the written order to produce the said evidence in respect whereof he decides to claim privilege under Section 123 of the Evidence Act, or for that matter under Section 124. So far as the public official in whose hands evidence derived from unpublished official records relating to affairs of the State is requisitioned by a police officer under Section 91, or a public officer from whom an official communication compelling him to disclose the same is demanded, that has been made to him in official confidence, such a direction would be a determinative order; at least determinative of the question of privilege or objection to its disclosure based on privilege under Section 123 or 124 of the Evidence Act. In that sense, an order in writing under Section 91 of the Code would not be a mere process during investigation, against which a writ petition or appropriate challenge before a Court of competent jurisdiction cannot be raised by a person, from whom official records relating to affairs of the State are requisitioned by the police, unless he challenges the FIR in connection whereof a written order under Section 91 of the Code has been passed. We, thus, do not find any force in the aforesaid objection of Sri S.K. Pal, learned Government Advocate, to the maintainability of this writ petition.
24. There is a further question that cropped up at this stage of argument based on the opening submissions of Sri Anoop Trivedi, learned Senior Advocate. This is whether a writ petition is an appropriate remedy to question a written order issued by an Officer In-charge of a Police Station requiring the production of any document, or other thing regarding which a public official seeks to claim privilege under Section 123 or 124 of the Evidence Act. There was some debate that this objection can be taken or urged not through a petition under Article 226 of the Constitution or a petition under Section 482 of the Code, if recognized in a particular jurisdiction by view of the law held there to be competent proceedings to challenge an FIR and ensuing investigation. On a pointed query by the Court as to why a claim about privilege under Section 123 or 124 of the Evidence Act cannot be urged and decided by the Magistrate, or the Court before whom the Investigating Agency applies for search warrants under Section 93 of the Code, which is precisely the case here, Sri Trivedi submits that indeed the powers under Section 93(1)(a) of the Code are wide enough to enable the Court envisaged under Section 93(1)(a) to consider an objection as to privilege, or any other objection to the written order under Section 91 of the Code, issued by the Officer In-charge of a Police Station. He submits that a reading of the provisions of Section 91(3) and 93(1)(a) of the Code together, would lead to the logical conclusion that the Court, before whom such warrants are applied by a Police Officer after serving a written order under Section 91(1)(a) of the Code, is empowered to decide the question of privilege under Section 123 or 124 of the Evidence Act, if claimed by the person to whom such an order to produce documents etc. is addressed. This according to Sri Trivedi, would bring about a harmonious construction between the provisions of Section 91(3) and 93(1) read with Section 123 & 124 of the Evidence Act. It is, particularly, so as a Police Officer cannot go into the validity of the privilege claimed against disclosure of a document by one who claims that privilege.
25. The aforesaid issue whether a privilege under Section 123 or 124 can be gone into by the Court under Section 93 of the Code before whom search warrants are applied by a police officer, who has issued a written order to a person to produce a document believed to be in possession of it, but claims privilege over it by virtue of Section 91(3) of the Code, to the understanding of this Court hardly brooks doubt. A conjoint reading of the provisions of Sections 93(1)(a) and 91(3) of the Code, leads to the inescapable conclusion that a Court seized of an application under Section 93(1)(a) asking it to issue search warrants, if objected to by the person or authority against whom those warrants are sought on any legal ground, particularly, a privilege under Sections 123 and 124 of the Evidence Act, would be obliged to go into the question and decide it in accordance with law. The Court under Section 93, is as much a Court as any other and would certainly be duty bound to decide an issue of privilege, if raised before it in objection to an application for the issue of search warrants; in the very nature of the process involved, the Court would have to decide the question of privilege first, before it takes a decision on the application for the issue of search of warrants. Though no direct decision on this point has been brought to the notice of the Court, we are fortified in principle in the view we take by the decision of their Lordships of the Supreme Court in V.S. Kuttan Pillai vs. Ramakrishnan2, where relating to the exercise of discretion to issue search warrants under Section 93(1)(c) of the Code, the principle laid down strongly dictates employment of judicial discretion and application of mind before a search warrant under the aforesaid provision is issued by a Magistrate. To our understanding, once the Magistrate and a fortiori the Court is not to act mechanically in the matter of issuing a search warrant, its obligation to deal with an objection based on privilege in resistance to an application for the issue of a search warrant under Section 93(1), be it under sub-clauses (a), (b) or (c), is the logical corollary. In V.S. Kuttan Pillai (supra), it has been held thus:
"17. ......... A search of such a public place under the authority of a general search warrant can easily be sustained under Section 93(1)(c). If the order of the learned Magistrate is construed to mean this, there is no illegality committed in issuing a search warrant. Of course, issuance of a search warrant is a serious matter and it would not be advisable not to dispose of an application for search warrant in a mechanical way by a laconic order. Issue of search warrant being in the discretion of the Magistrate it would be reasonable to expect of the Magistrate to give reasons which swayed his discretion in favour of granting the request. A clear application of mind by the learned Magistrate must be discernible in the order granting the search warrant. Having said this, we see no justification for interfering with the order of the High Court in this case."
(Emphasis by Court)
26. The further question that has logically arisen in this context, at the instance of the learned Government Advocate is as to whether the petitioners have a right to move this Court under Article 226 of the Constitution against a written order under Section 91 of the Code requiring them to produce certain documents or disclose information about which they claim privilege, under Sections 123 and 124 of the Evidence Act. The submission of Sri S.K. Pal is to the effect that once the Court seized of an application under Section 93 of the Code is competent on an objection to be raised by the petitioners to go into the question of privilege as aforesaid, this writ petition would be barred by the principle of alternative remedy, and ought not to be entertained on that ground alone. This Court does not agree. A process under Section 93(1)(a) envisages a discretion with the Court, though again like any discretion to be exercised judiciously, to straightaway issue a search warrant if the Court is of opinion that a person to whom an order under Section 91 has been or might be addressed, will not or would not produce the document. That is a potent contingency that may always defeat the right to enforce privilege under Section 123 or 124 of the Evidence Act. Thus, in our considered opinion, the jurisdiction of the Court seized of the application under Section 93 of the Code, would not be an equally efficacious remedy to scuttle challenge to an order under Section 91 of the Code. We have already held earlier in the context of another objection by the State that this writ petition against an order under Section 91 of the Code is maintainable, and our conclusions on this score are no different.
27. It requires to be recorded here that though in the writ petition, there are elaborate pleadings regarding the impugned order being bad on account of the fact that it arises out of a second FIR relating to the same offence as the one said to be registered at Kolkata under orders of the Judicial Magistrate, and that order being subsequently stayed by the High Court, but at the hearing of this matter Sri Anoop Trivedi has given up that plea before us.
28. The first submission of Sri Anoop Trivedi, learned Senior Advocate, in support of the claim based on privilege regarding documents and information sought through the impugned order is that it is subject to a claim to privilege under Section 123 of the Evidence Act. He submits that it is also subject to a privilege carried in Section 124 of the Evidence Act. It is pointed out that these two Sections operate to counter-veil the jurisdiction of the police or a Court to require production of a document regarding which a privilege under either of these two Sections is claimed, by virtue of Section 91(3) of the Code. He has canvassed in the first part of his submissions that once that kind of a privilege is claimed and objection raised, either before a Court that issues a summons to produce a document to a person in whose possession it is believed to be, or where an Officer In-charge of a Police Station issues a written order for like purpose, a privilege claimed over it by one who has possession of it on ground that it is derived from unpublished official records relating to any affairs of the State, regarding which no permission of the Head of the Department concerned has been given, cannot be required to be produced, or given in evidence. It is submitted by Sri Trivedi that in the context of such an objection being raised before a Court - which can alone be raised before a Court in appropriate proceedings, and not before a Police Officer, who has passed a written order under Section 91 - the jurisdiction of the Court is limited to only two questions. The first is whether evidence derived from unpublished official records demanded by the Court, or the Police Officer, indeed, relates to affairs of the State, which the Court is entitled to decide upon looking into the document or otherwise. In the next place where the Court decides that it does relate to affairs of the State, it has to be further inquired into by the Court whether the Head of the Department concerned has denied requisite permission to give it in evidence or to produce it. If the Head of the Department has refused to give the subject document or information in evidence derived from unpublished official records relating to affairs of the State, the Head of the Department's expressed opinion is final and the Court cannot compel production of such document or information. In this connection, Sri Trivedi has invited the attention of the Court to the provisions of Sections 123 and 124 of the Evidence Act, which are reproduced below:
"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.
124. Official communications.--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."
29. Likewise, he has invited the attention of the Court to the provisions of Section 162 of the Evidence, that are extracted below:
"162. Production of documents.--A witness summoned to produce a document shall, if it is in his possession or power, bring it to the 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.
Translation of documents.--If for such a purpose it is necessary to cause any document to be translated, the Court may, if it thinks fit, direct the translator to keep the contents secret, unless the document is to be given in evidence: and, if the interpreter disobeys such direction, he shall be held to have committed an offence under Section 166 of the Indian Penal Code (XLV of 1860)."
30. He has further referred to the provisions of Section 91 of the Code, particularly, emphasizing the provisions of Section 91(3), which read thus:
"91. Summons to produce document or other thing.--(1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.
(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.
(3) Nothing in this section shall be deemed--
(a) to affect Sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers' Books Evidence Act, 1891 (13 of 1891), or
(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority."
31. Sri Trivedi has placed reliance, in support of the view that the Court's jurisdiction is very limited once a privilege under Sections 123 and 124 is claimed, upon the decision of the Supreme Court in Sodhi Sukhdev Singh (supra). He has referred to paragraphs 25, 27, 28, 40, 41 & 42 of the Report in Sodhi Sukhdev Singh (supra) that reads:
"25. Thus our conclusion is that reading Sections 123 and 162 together 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 is a matter for the authority concerned to decide; but the court is competent, and indeed is bound, to hold a preliminary enquiry and determine the validity of the objections to its production, and that necessarily involves an enquiry into the question as to whether the evidence relates to an affair of State under Section 123 or not.
27. In this connection it is necessary to add that the nature and scope of the enquiry which, in our opinion, it is competent to the court to hold under Section 162 would remain substantially the same whether we accept the wider or the narrower interpretation of the expression "affairs of State". In the former case the court will decide whether the document falls in the class of innocuous or noxious documents; if it finds that the document belongs to the innocuous class it will direct its production; if it finds that the document belongs to the noxious class it will leave it to the discretion of the head of the department whether to permit its production or not. Even on the narrow construction of the expression "affairs of State" the court will determine its character in the first instance; if it holds that it does not fall within the noxious class which alone is included in the relevant expression on this view an order for its production will follow; if the finding is that it belongs to the noxious class the question about its production will be left to the discretion of the head of the department. We have already stated how three views are possible on this point. In our opinion, Mr Seervai's contention which adopts one extreme position ignores the effect of Section 162, whereas the contrary position which is also extreme in character ignores the provisions of Section 123. The view which we are disposed to take about the authority and jurisdiction of the court in such matters is based on a harmonious construction of Section 123 and Section 162 read together; it recognises the power conferred on the court by clause (1) of Section 162, and also gives due effect to the discretion vested in the head of the department by Section 123.
28. It would thus be clear that in view of the provisions of Section 162 the position in India in regard to the court's power and jurisdiction is different from the position under the English law as it obtained in England in 1872. It may be true to say that in prohibiting the inspection of documents relating to matters of State the second clause of Section 162 is intended to repel the minority view of Baron Martin in the case of Beatson [(1860) 5 H & N 838] . Nevertheless the effect of the first clause of Section 162 clearly brings out the departure made by the Indian law in one material particular, and that is the authority given to the court to hold a preliminary enquiry into the character of the document. That is why we think that the arguments so elaborately and ingeniously built up by Mr Seervai on the basis of the background of the Indian Evidence Act breaks down in the light of the provisions of Section 162. We may add that in substance and broadly stated the consensus of judicial opinion in this country is in favour of this conclusion. (Vide: e.g. Kaliappa Udayan v. Emperor [AIR 1937 Mad 492] ; R.M.D. Chamarbaugwala v. Y.R. Parpia [AIR 1950 Bom 230] ; Governor-General-in-Council v. H. Peer Mohd. Khuda Bux [AIR 1950 East Punjab 228] ; Public Prosecutor, Andhra v. Venkata Narasayya [AIR 1957 Andhra 486] ; and Ijjat Ali Talukdar v. Emperor [ILR (1944) 1 Cal 410] ). Therefore we think it is unnecessary to refer to these decisions in detail or to examine the reasons given by them in support of the conclusion reached by them.
40. It now remains to consider whether the High Court was right in holding that the privilege claimed by the appellant in respect of the four documents in question was not justified, and that takes us to the consideration of the relevant facts in the present appeal. The documents of which discovery and inspection were claimed are thus described by the respondent:
(1) Original order passed by Pepsu Government on September 28, 1955, on the representation dated May 18, 1955, submitted by Sodhi Sukhdev Singh;
(2) Original order passed by the Pepsu Government on March 8/9, 1956, reaffirming the decision passed on September 28, 1955, referred to above;
(3) Original order passed by the Pepsu Government in their Cabinet meeting dated August 11, 1956, revising their previous order on the representation of Sodhi Sukhdev Singh dated May 18, 1955; and (4) Report of the Public Service Commission on the representation of Sodhi Sukhdev Singh dated May 18, 1955, after the Pepsu Government's decision on September 28, 1955.
In dealing with this question and in reversing the order passed by the trial court by which the privilege had been upheld, the High Court has purported to apply the definition of the expression "affairs of State" evolved by Khosla, J., as he then was, in the case of Governor-General in Council v. H. Peer Mohd. Khuda Bux [AIR 1950 East Punjab 228] : "It is, therefore, sufficiently clear," said the learned Judge, "that the expression ''affairs of State' as used in Section 123 has a restricted meaning, and on the weight of authority, both in England and in this country, I would define ''affairs of State' as matters of a public nature in which the State is concerned, and the disclosure of which will be prejudicial to the public interest or injurious to national defence or detrimental to good diplomatic relations". It is this definition which was criticised by Mr Seervai on the ground that it purported to describe the genus, namely, affairs of State, solely by reference to the characteristics of one of its species, namely, documents whose disclosure was likely to cause injury to public interest. Having adopted this definition the High Court proceeded to examine whether any injury would result from the disclosure of the documents, and came to the conclusion that it was difficult to sustain the plea that the production of the documents would lead to any of the injuries specified in the definition evolved by Khosla, J. On this ground the High Court allowed the contention of the respondent and directed the State to produce the documents in question.
41. We have already held that in dealing with the question of privilege raised under Section 123 it is not a part of the court's jurisdiction to decide whether the disclosure of the given document would lead to any injury to public interest; that is a matter for the head of the department to consider and decide. We have also held that the preliminary enquiry where the character of the documents falls to be considered is within the jurisdiction and competence of the court, and we have indicated how within the narrow limits prescribed by the second clause of Section 162 such an enquiry should be conducted. In view of this conclusion we must hold that the High Court was in error in trying to enquire into the consequences of the disclosure; we may add that the decision of the High Court suffers from the additional infirmity that the said enquiry has been confined only to the specified classes of injury specified by Khosla, J. in his definition which cannot be treated as exhaustive. That being so, we think the appellant is justified in complaining against the validity of the decision of the High Court.
42. Let us then consider whether the documents in question do really fall within the category of documents relating to "affairs of State". Three of the documents the discovery of which the respondent claimed are described as original orders passed by the Pepsu Cabinet on the three respective dates. It is difficult to understand what was exactly meant by describing the said documents as original orders passed on those dates; but quite apart from it the very description of the documents clearly indicates that they are documents relating to the discussions that took place amongst the members of the Council of Ministers and the provisional conclusions reached by them in regard to the respondent's representation from time to time. Without knowing more about the contents of the said documents it is impossible to escape the conclusion that these documents would embody the minutes of the meetings of the Council of Ministers and would indicate the advice which the Council ultimately gave to the Rajpramukh. It is hardly necessary to recall that advice given by the Cabinet to the Rajpramukh or the Governor is expressly saved by Article 163, sub-article (3) of the Constitution; and in the case of such advice no further question need to be considered. The same observation falls to be made in regard to the advice tendered by the Public Service Commission to the Council of Ministers. Indeed it is very difficult to imagine how advice thus tendered by the Public Service Commission can be excluded from the protection afforded by Section 123 of the Act. Mr Gopal Singh attempted to argue that before the final order was passed the Council of Ministers had decided to accept the respondent's representation and to reinstate him, and that, according to him, the respondent seeks to prove by calling the two original orders. We are unable to understand this argument. Even if the Council of Ministers had provisionally decided to reinstate the respondent that would not prevent the Council from reconsidering the matter and coming to a contrary conclusion later on, until a final decision is reached by them and is communicated to the Rajpramukh in the form of advice and acted upon by him by issuing an order in that behalf to the respondent. Until the final order is thus communicated to the respondent it would be open to the Council to consider the matter over and over again, and the fact that they reached provisional conclusions on two occasions in the past would not alter the character of the said conclusions. The said conclusions, provisional in character, are a part of the proceedings of the Council of Ministers and no more. The report received by the Council from the Public Service Commission carries on its face the character of a document the disclosure of which would lead to injury of public interest. It falls in that class of document which "on grounds of public interest must as a class be withheld from production". Therefore, in our opinion, the conclusion appears inescapable that the documents in question are protected under Section 123, and if the head of the department does not give permission for their production, the court cannot compel the appellant to produce them. We should have stated that the two affidavits made by the Chief Secretary in support of the plea of the claim of privilege satisfied the requirements which we have laid down in our judgment, and no comment can be effectively made against them. The argument that in its pleadings the appellant accepted the description of the respondent that the document contained orders is hardly relevant or material. The affidavits show what these documents purport to be and that leads to the inference which irresistibly follows from the very description of the documents given by the respondent himself in his application by which he called for their production and inspection."
32. The scope of the Court's authority while judging the validity of a claim as to privilege put forward by the State was reconsidered by a Seven Judge Constitution Bench of their Lordships in S.P. Gupta vs. Union of India and others3, where dealing with the issue as to whose opinion about the privilege claimed under Section 123 of the Evidence Act, would be final read with Section 162 of that Act, their Lordships held the earlier decision in Sodhi Sukhdev Singh (supra) as one not laying down the correct law, and instead, held that final decision in regard to the validity of an objection against disclosure, raised under Section 123 of the Evidence Act would always be with the Court. Their Lordships eloquently laid down the law regarding factors, that have to be taken into account while balancing public interest that would be prejudiced by the disclosure and the competing public interest that would be impaired by sustaining the privilege claimed, which would in turn thwart the administration of justice. Paragraphs 68, 72, 76 & 77 of the Report in S.P. Gupta (supra) are eloquent on the issue, which are quoted infra:
"68. There is also another infirmity from which the view taken in Sodhi Sukhdev Singh case [AIR 1961 SC 493 : (1961) 2 SCR 371 : (1961) 2 SCJ 691] suffers. Gajendragadkar, J. speaking on behalf of himself and the other learned Judges observed that when an objection against the disclosure of a document is raised under Section 123, the court must first determine the character of the document and if it comes to the conclusion that the document relates to affairs of State, it should leave it to the head of the department to decide whether he should permit its production or not. Now even according to Gajendragadkar, J. and the other learned Judges, a document can be said to relate to affairs of State only if it is a document of such a character that its disclosure will injure public interest and therefore the court would have to reach the conclusion that the disclosure of the document will be injurious to public interest before it can find that the document relates to affairs of State. If that be so, it is difficult to understand, after the court has enquired into the objection and come to the conclusion that disclosure of the document would be injurious to public interest, what purpose would be served by reserving to the head of the department the power to permit its disclosure, because the question to be decided by him would practically be the same, namely, whether disclosure of the document would be injurious to public interest -- a question already decided by the court. In other words, if injury to public interest is the foundation of this immunity from disclosure, when once the court has inquired into the question and found that the disclosure of the document will injure public interest and therefore it is a document relating to affairs of State, it would in most cases be a futile exercise for the head of the department to consider and decide whether its disclosure should be permitted as he would be making an enquiry into the identical question. There may be a few rare cases where in regard to a document which by reason of the class to which it belongs may be regarded as relating to affairs of State, the head of the department may be able to take the view that though it belongs to the noxious class, its disclosure would not be injurious to public interest and therefore allow it to be disclosed. But, by and large, once the court has found that the document is of such a character that its disclosure will cause injury to public interest, it would be futile to leave it to the head of the department to decide whether he should permit its production or not. We are therefore unable to accept the decision in Sodhi Singh case [AIR 1961 SC 493 : (1961) 2 SCR 371 : (1961) 2 SCJ 691] as laying down the correct law on this point. The court would allow the objection if it finds that the document relates to affairs of State and its disclosure would be injurious to public interest, but on the other hand, if it reaches the conclusion that the document does not relate to affairs of State or that the public interest does not compel its non-disclosure or that the public interest in the administration of justice in the particular case before it overrides all other aspects of public interest, it will overrule the objection and order disclosure of the document. The basic question to which the court would therefore have to address itself for the purpose of deciding the validity of the objection would be whether the document relates to affairs of State or in other words, it is of such a character that its disclosure would be against the interest of the State or the public service and if so, whether the public interest in its non-disclosure is so strong that it must prevail over the public interest in the administration of justice and on that account, it should not be allowed to be disclosed. The final decision in regard to the validity of an objection against disclosure raised under Section 123 would always be with the court by reason of Section 162.
72. We have already pointed out that whenever an objection to the disclosure of a document under Section 123 is raised, two questions fall for the determination of the court, namely, whether the document relates to affairs of State and whether its disclosure would, in the particular case before the court, be injurious to public interest. The court in reaching its decision on these two questions has to balance two competing aspects of public interest, because the document being one relating to affairs of State, its disclosure would cause some injury to the interest of the State or the proper functioning of the public service and on the other hand if it is not disclosed, the nondisclosure would thwart the administration of justice by keeping back from the court a material document. There are two aspects of public interest clashing with each other out of which the court has to decide which predominates. The approach to this problem is admirably set out in a passage from the judgment of Lord Reid in Conwayv. Rimmer [(1968) AC 910, 952, 973, 979, 987, 993 : (1968) 1 All ER 874 (HL)] :
"It is universally recognised that there are two kinds of public interest which may clash. There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done. There are many cases where the nature of the injury which would or might be done to the nation or the public service is of so grave a character that no other interest, public or private, can be allowed to prevail over it. With regard to such cases it would be proper to say, as Lord Simon did, that to order production of the document in question would put the interest of the State in jeopardy. But there are many other cases where the possible injury to the public service is much less and there one would think that it would be proper to balance the public interests involved."
The court has to balance the detriment to the public interest on the administrative or executive side which would result from the disclosure of the document against the detriment to the public interest on the judicial side which would result from non-disclosure of the document though relevant to the proceeding (Vide the observations of Lord Pearson in Reg v. Lewes Justices, ex parte Home Secretary [1973 AC 388, 412 : (1972) 2 All ER 1057 (HL) (cited therein as Regers v. Secretary of State for the Home Department, Gaming Board for Great Britain v. Rogers)] at p. 406 of the Report). The court has to decide which aspect of the public interest predominates or in other words, whether the public interest which requires that the document should not be produced, outweighs the public interest that a court of justice in performing its function should not be denied access to relevant evidence. The court has thus to perform a balancing exercise and after weighing the one competing aspect of public interest against the other, decide where the balance lies. If the court comes to the conclusion that, on the balance, the disclosure of the document would cause greater injury to public interest than its non-disclosure, the court would uphold the objection and not allow the document to be disclosed but if, on the other hand, the court finds that the balance between competing public interests lies the other way, the court would order the disclosure of the document. This balancing between two competing aspects of public interest has to be performed by the court even where an objection to the disclosure of the document is taken on the ground that it belongs to a class of documents which are protected irrespective of their contents, because there is no absolute immunity for documents belonging to such class. Even in Conway v. Rimmer[(1968) AC 910, 952, 973, 979, 987, 993 : (1968) 1 All ER 874 (HL)] at p. 952, Lord Reid recognised an exception that cabinet minutes and the like can be disclosed when they have become only of historical interest, and in Lanyon Property Limited v. Commonwealth [129 CLR 650] , Menzies, J. agreed that there might be "very special circumstances" in which such documents might be examined. Lord Scarman also pointed out in the course of his speech in Burmah Oil Co. Ltd. v. Bank of England[(1979) 3 All ER 700, 732] that he did not accept "that there are any classes of documents which, however harmless their contents and however strong the requirement of justice, may never be disclosed until they are only of historical interest". The learned law Lord said and we are quoting here his exact words since they admirably express our own approach to the subject:
"But is the secrecy of the ''inner workings of the Government machine so vital a public interest that it must prevail over even the most imperative demands of justice? If the contents of a document concern the national safety, affect diplomatic relations or relate to some State secret of high importance, I can understand an affirmative answer. But if they do not (and it is not claimed in this case that they do), what is so important about secret Government that it must be protected even at the price of injustice in our courts?
The reasons given for protecting the secrecy of Government at the level of policy-making are two. The first is the need for candour in the advice offered to Ministers; the second is that disclosure ''would create or fan ill-informed or captious public or political criticism'. Lord Reid in Conway v. Rimmer [(1968) AC 910, 952, 973, 979, 987, 993 : (1968) 1 All ER 874 (HL)] thought the second ''the most important reason'. Indeed, he was inclined to discount the candour argument.
I think both reasons are factors legitimately to be put into the balance which has to be struck between the public interest in the proper functioning of the public service (i.e. the executive arm of the Government) and the public interest in the administration of justice. Sometimes the public service reasons will be decisive of the issue; but they should never prevent the court from weighing them against the injury which would be suffered in the administration of justice if the document was not to be disclosed."
The same view was expressed by Gibbs, ACJ in Sankey v. Whitlam [(1978) 21 Australian LR 505 : 53 ALJR 11] where the learned Acting Chief Justice said:
"I consider that although there is a class of documents whose members are entitled to protection from disclosure irrespective of their contents, the protection is not absolute, and it does not endure for ever. The fundamental and governing principle is that documents in the class may be withheld from production only when this is necessary in the public interest. In a particular case the court must balance the general desirability that documents of that kind should not be disclosed against the need to produce them in the interests of justice. The court will of course examine the question with special care, giving full weight to the reasons for preserving the secrecy of documents of this class, but it will not treat all such documents as entitled to the same measure of protection -- the extent of protection required will depend to some extent on the general subject-matter with which the documents are concerned."
There is nothing sacrosanct about the immunity which is granted to documents because they belong to a certain class. Class immunity is not absolute or inviolable in all circumstances. It is not a rule of law to be applied mechanically in all cases. The principle upon which class immunity is founded is that it would be contrary to public interest to disclose documents belonging to that class, because such disclosure would impair the proper functioning of the public service and this aspect of public interest which requires that justice shall not be denied to anyone by withholding relevant evidence. This is a balancing task which has to be performed by the court in all cases.
76. We may also point out that we were invited to inspect for ourselves the correspondence exchanged between the Law Minister, the Chief Justice of Delhi High Court and the Chief Justice of India for the purpose of deciding whether that correspondence was entitled to immunity against disclosure. Now the view taken in Sodhi Sukhdev Singh case [State of Punjab v. Sodhi Sukhdev Singh, (1961) 2 SCR 371 : AIR 1961 SC 493 : (1961) 2 SCJ 691] was that where an objection is raised against the disclosure of a document under Section 123, the Court has no power to inspect the document under Section 162 for the purpose of deciding the objection. But with the greatest respect to the learned Judges who decided that case, we do not think this view is correct and in fact subsequent decisions of this Court seem to be against it. So far as English Law is concerned it is now well settled as a result of the decision of the House of Lords in Conway v. Rimmer [1968 AC 910 : (1968) 2 WLR 998 : (1968) 1 All ER 874 (HL)] that there is a residual power in the Court to inspect the document if the Court finds it necessary to do so for the purpose of deciding whether on balance the disclosure of the document would cause greater injury to public interest than its non-disclosure. Vide Conway v. Rimmer [1968 AC 910 : (1968) 2 WLR 998 : (1968) 1 All ER 874 (HL)] at pp. 953, 979, 981 and 993. This residual power of the court to inspect the document has also been recognised in Australian Law by the decision of the High Court of Australia in Sankey v. Whitlam [(1978) 21 Australian LR 505 : 53 ALJR 11] . We do not see any reason why under Indian Law the Court should be denied this residual power to inspect the document. It is true that under Section 162 the Court cannot inspect the document if it relates to affairs of State, but this Bar comes into operation only if the document is established to be one relating to affairs of State. If, however, there is any doubt whether the document does relate to affairs of State, the residual power which vests in the Court to inspect the document for the purpose of determining whether the disclosure of the document would be injurious to public interest and the document is therefore one relating to affairs of State, is not excluded by Section 162. This Court in fact held in no uncertain terms in Raj Narain case [State of U.P. v. Raj Narain, (1975) 4 SCC 428 : (1975) 3 SCR 333 : AIR 1975 SC 865] where an objection against the disclosure of the Blue Book was taken on behalf of the State under Section 123, that if the Court was not satisfied with the affidavit objecting to the disclosure of the document, the Court may inspect the document. Ray, C.J. observed at two places while dealing with the objection against the disclosure of the Blue Book under Section 123 that "If the Court would yet like to satisfy itself the Court may see the document. This will be the inspection of the document by the Court" and "if the Court in spite of the affidavit wishes to inspect the document, the Court may do so" (SCC p. 443). Mathew, J. also pointed out that in Amar Chand Butail v. Union of India [AIR 1964 SC 1658 : (1965) 1 SCJ 243] , this Court inspected the document in order to see whether it related to affairs of State. There can therefore, be no doubt that even where a claim for immunity against disclosure of a document is made under Section 123, the Court may in an appropriate case inspect the document in order to satisfy itself whether its disclosure would, in the particular case before it, be injurious to public interest and the claim for immunity must therefore be upheld. Of course this power of inspection is a power to be sparingly exercised, only if the Court is in doubt, after considering the affidavit, if any, filed by the minister or the secretary, the issues in the case and the relevance of the document whose disclosure is sought. Since, in the present case, the affidavit of T.N. Chaturvedi claiming immunity against disclosure was made at a late stage of the proceedings and the claim for immunity was in respect of a new class of documents which has so far not come up for judicial consideration and we were in doubt, even after considering the affidavit, whether the correspondence whose disclosure was sought on behalf of the petitioners and S.N. Kumar was of such a character that its disclosure would, on an overall view after weighing the two aspects of public interest referred to above, be injurious to public interest, we inspected the correspondence for ourselves for the purpose of deciding whether or not it should be ordered to be disclosed.
77. Now as we have already pointed out above, it is for the court to decide the claim for immunity against disclosure made under Section 123 by weighing the competing aspects of public interest and deciding which, in the particular case before the court, predominates. The court is not bound by the affidavit made by the minister or the secretary because the minister or the secretary would be concerned primarily and almost exclusively with the assertion of the public interest which would be injured by the disclosure of the document and he would have very little concern, if at all, with the public interest in the fair administration of justice and in fact he would not be in a position to appreciate and assess the relative importance of the two competing public interests so as to be able to Judge as to which in the particular case before the Court should be allowed to prevent. What should be the relative weight to be attached to each aspect of public interest is a question which the court would be best qualified to decide and not the minister or the secretary. That is why in Conway v. Rimmer [1968 AC 910 : (1968) 2 WLR 998 : (1968) 1 All ER 874 (HL)] Lord Reid, while rejecting the notion that a minister's claim of immunity was conclusive, pointed out at p. 943 that the minister who withholds production of a document has no duty to consider the degree of public interest involved in a particular case in frustrating the due administration of justice, it not mattering to the minister at all whether the result of withholding the document would merely be to deprive a litigant of some evidence on a minor issue in a case of little importance or on the other hand, to make it impossible to do justice in a case of the greatest importance. The court would of course consider the affidavit made by the minister or the secretary and give it due weight and importance, but ultimately it is the court which will have to determine which aspect of public interest must prevail and whether the claim for immunity against disclosure should be upheld or not. This was most felicitously expressed by Lord Radcliffe in the Scottish appeal of Glasgow Corporation v. Central Land Board [1956 SC 1 (HL), 20 : 1956 SLT 41] where the learned Law Lord said:
"The power reserved to the court is therefore a power to order production even though the public interest is to some extent affected prejudicially. This amounts to a recognition that more than one aspect of the public interest may have to be surveyed in reviewing the question whether a document which would be available to a party in a civil suit between private parties is not to be available to the party engaged in a suit with the Crown. The interests of Government, for which the minister should speak with full authority, do not exhaust the public interest. Another aspect of that interest is seen in the need that impartial justice should be done in the courts of law, not least between citizen and Crown, and that a litigant who has a case to maintain should not be deprived of the means of its proper presentation by anything less than a weighty public reason. It does not seem to me unreasonable to expect that the court would be better qualified than minister to measure the importance of such principles in application to the particular case that is before it."
Mathew, J. also observed to the same effect in his concurring opinion in Raj Narain case [State of U.P. v. Raj Narain, (1975) 4 SCC 428 : (1975) 3 SCR 333 : AIR 1975 SC 865] : (SCC pp. 452-53, para 71) "The claim of the Executive to exclude evidence is more likely to operate to subserve a partial interest, viewed exclusively from a narrow departmental angle. It is impossible for it to see or give equal weight to another matter, namely, that justice should be done and seen to be done. When there are more aspects of public interest to be considered, the Court will, with reference to the pending litigation, be in a better position to decide where the weight of public interest predominates."
The court will therefore have to put in the scales against the injury to public interest which may be caused by the disclosure of the document, the likely injury to the cause of injustice by non-disclosure and both will have to be assessed and weighed and it will have to be determined on which side the balance tilts."
(Emphasis by Court)
33. This Court so far as the legal position is concerned is of clear opinion that the decisions treating the privilege claimed by the Head of the Department to be final and binding on the Court, once a document was held to be one related to affairs of the State, are no longer good law and it is now the Court that has to decide on a fair and just balancing of the two competing public interests of injury to the affairs of the State by disclosure of a document, that may carry information injurious to public interest, and the competing public interest of administration of justice in the particular case, based on its own facts. The submission of Sri Anoop Trivedi, thus, based on the earlier view of their Lordships in Sodhi Sukhdev Singh (supra) cannot be accepted as the same is no longer good law in view of the Seven Judge Bench decision of their Lordships in S.P. Gupta (supra), that has made the Court the final arbiter of a question of privilege raised under Section 123 read with Section 162 of the Evidence Act.
34. This Court, therefore, proceeds to determine whether the documents, information regarding which privilege is claimed by the petitioners is, indeed, one that ought to be allowed with reference to the provisions of Sections 123 and 124 of the Evidence Act, or on a balance of competing public interests, it ought not to be so allowed. Sri Anoop Trivedi has confined his challenge vis-a-vis documents and disclosure of information, sought through paragraphs 2, 4, 5 & 6 of the impugned order. This submission limits the challenge in the impugned order about disclosure of documents and information covered by the aforesaid paragraphs alone that in the writ petition was challenged with reference to paragraphs 1 to 6 and 8 of the order impugned, as would appear from a perusal of paragraph 59 of the writ petition. A perusal of paragraph 7 of the supplementary affidavit dated 16.06.2019 filed in support of the further application for stay, other than the one filed along with the writ petition shows, that part of the information mentioned in paragraph 2 of the impugned order, besides all other information sought thereby, to the satisfaction of the Investigating Agency, or not so much to their satisfaction, has already been disclosed and provided to them through a memo dated 03.06.2019, a copy of which is annexed as Annexure SA-1 to the supplementary affidavit. It is in view of the said disclosure that Sri Anoop Trivedi has limited his challenge to the impugned order against disclosure of information and provision of documents sought on the strength of a privilege claimed under Sections 123 and 124 of the Evidence Act to those documents and information, that have been sought through paragraphs 4, 5 & 6 of the impugned order.
35. Sri Trivedi has further claimed privilege from disclosure regarding that part of the demand carried in paragraph 2, which requires the Commission to share, with full particulars of the decision, taken to declare the result of the LT Grade Teachers Recruitment Test held on 29th July, 2018, together with all documents relating to the said decision. Learned Senior Counsel has pointed out that answer to the information sought through paragraphs 1 and 2 of the impugned order, the Commission have already disclosed through their memo dated 3rd June, 2019. Whatever has not been provided, Sri Anoop Trivedi, learned senior counsel submits, are documents, communication and information in respect of which they claim privilege under Sections 123 and 124 of the Evidence Act. It must be placed on record hear that though at the hearing of this petition, Sri Anoop Trivedi in his submissions advanced, has confined his claim against disclosure of documents, official communication and information carried in either of them to those sought through paragraphs 2, 4, 5 & 6 of the impugned order, but on a consideration of the documents on record and the way the privilege has been asserted by Sri Trivedi, it is apparent that some part of information, that is a document referable to paragraph 1 of the impugned order, is also subject matter of objection by the Commission.
36. In order to appreciate what has been provided and what has been withheld, so far as the paragraphs 1 and 2 of the impugned order are concerned, a juxtaposition of paragraphs 1 and 2 of the impugned order and the memo of disclosure dated 3rd June, 2019, would be required. This can best be done by depicting the information sought, and that given through the two communications, above referred, in tabular form (translated into English from Hindi vernacular):
Sl. No. Paragraph no. of the impugned order Information sought Paragraph no. of the memo dated 03.06.19 through which information is disclosed Particulars of the information including document disclosed/ provided 1 Paragraph no.1 A copy of each of the memoranda bearing letter no. CA/STF-08(1) 2019 dated 04.01.19 and dated 25.02.19 sent by the SSP, STF, Lucknow and a copy of the decision taken by the Commission. In case any other correspondence has been addressed to the Commission by the STF, a copy of such correspondence and the particulars of the relevant action taken on the basis of such correspondence (Note: The impugned order though addressed to the Secretary of the Commission and referring to decisions taken by him in substance means the decisions taken by the Commission which is a position agreed to the learned counsel for both sides at the hearing) Paragraph no.1 The memorandum bearing letter no. CA/STF-08(1) 2019, dated 04.01.19 from the SSP, STF, Lucknow and in reply to the same, photostat copies of the letters dated 10.01.19 and 28.01.19 are enclosed. A photostat copy of the letter dated 25.02.19 from SSP is enclosed. Acting, regarding letters dated 08.02.19, 12.02.19 and 28.02.19 from the STF on the issue of postponing declaration of the result, or its declaration, the Commission sought legal advice and after necessary deliberation, the Commission have decided that since Writ Petition no.17183 of 2018 (Vijay Nath and another vs. State of U.P. and others) challenging the aforesaid LT Grade Examination dated 25.07.2018 is already pending before the Hon'ble High Court, where the Principal Secretary (Home) is arrayed as respondent no.3 and the Commission are also parties, the Commission having filed a counter affidavit in the said petition, and in view of the fact that the Hon'ble High Court has not passed any stay order till date, subject to a final decision of the Hon'ble Court in Writ Petition no.17183 of 2018 (Vijay Nath and another vs. State of U.P. and others) and keeping aside that list of complainants (by which is perhaps meant the list of those candidates against whom there is that complaint of being beneficiaries of the leaked question paper), result of the rest of the candidates has been decided to be declared. However, before provision of a copy of the decision of the Hon'ble Commission in this regard (to the STF), prior permission of the Hon'ble Commission is required, in accordance with the procedure applicable. After permission to provide a copy of the Hon'ble Commission's decision is granted, a copy of the same would be provided.2
Paragraph no.2 Regarding LT Grade Selection held on 29th July, the STF had requested postponement of declaration of result, but despite that request on what different dates the result aforesaid was declared, and a copy of the decision together with full particulars and documents.
Paragraph no.2 In accordance with the decision of the Commission, the date-wise declaration of results is as follows:
Sr. No. Subject Date of declaration of result 1 Agriculture (Male) and Music (Male) '16.03.2019 2 Home Science (Male) and Music (Female) '05.04.2019 3 Commerce (Male) and Commerce (Female) '12.04.2019 4 Urdu (Male) and Urdu (Female) '23.04.2019 5 Physical Education (Male) and Physical Education (Female) '27.04.2019 6 Home Science (Female) '03.05.2019 7 Sanskrit (Male) and Sanskrit (Female) '10.05.2019 A copy of the notification about declaration of the aforesaid results and each of the results are annexed herewith. It is further informed that results relating to the Subjects Hindi and Sociology, have not been declared so far. Subjects relating to which results have been declared, no recommendations have been made so far to the concerned Department. There are eight Subjects, in which results are yet to be declared.
37. With regard to paragraph 1 of the impugned order and the relevant information/ documents supplied through memo dated 03.06.2019, it appears that from a further memorandum dated 07.06.2019 issued by the Circle Officer, Pindara/ Investigating Officer, S.T.F., Varanasi, addressed to Sri Brijendra Kumar Dwivedi, Nodal Officer/ Joint Secretary, U.P. Public Service Commission, that the only surviving issue between parties regarding information sought through paragraph 1 of the impugned order is regarding a copy of the decision taken by the Commission to declare results of the examination in question. We do not know whether a copy of the said decision has been provided as yet to the S.T.F. because Sri Anoop Trivedi, learned senior counsel appearing on behalf of the petitioners, has no longer claimed privilege with regard to information, subject matter of paragraph 1 of the impugned order, but from the course of correspondence in this matter, we assume in the absence of any specific stand to the contrary being brought to our notice that a copy of the said decision has not yet been provided to the S.T.F. So far as paragraph 2 of the impugned order is concerned, the S.T.F. in their memo dated 3rd June, 2019, have not raised any further issue regarding the said paragraph, but during the hearing the record of the information provided in answer to information/ documents sought through paragraph 2 of the impugned order, it appears that production of records of the proceedings of the Commission, including documents taken into consideration while arriving at a decision to declare the result is objected to by the Commission.
38. Now, since at the hearing of this matter, Sri Anoop Trivedi has not raised any issue about any document, information or communication sought through paragraph 1 of the impugned order, there is no case about anything demanded by means of the impugned order, vide paragraph 1. Thus, the petitioners on their concession before this Court ought to hand over a copy of the decision of the Commission, on the basis of which various results relating to the L.T. Grade Examination have been declared on various dates, or are to be declared in future, relating to those Subjects where they have so far not been declared.
39. So far paragraph 2 of the impugned order is concerned, the petitioners have pressed their privilege under Sections 123 and 124 read with Section 162 of the Evidence Act, and said that they cannot be compelled to disclose the record of proceedings, together with documents taken into consideration by the Commission, while arriving at the decision through which the Commission have ordered declaration of results of the L.T. Grade Examination in question. The aforesaid plea regarding the privilege claimed in relation to this part of the information, covered by paragraph 2 of the impugned order will shortly be examined.
40. About paragraph 3 of the impugned order, the Commission do not claim any privilege, and, therefore, there should be no difficulty in the disclosure of information or provision of documents or other official communications involved, required by the said paragraph.
41. So far as paragraphs 4, 5 & 6 of the impugned order are concerned, Sri Anoop Trivedi, learned senior counsel appearing for the Commission strongly objects to the disclosure of any information, intra-departmental communication between officials of the Commission made in official confidence, or provision of any document demanded through the aforesaid paragraphs by the S.T.F. He submits that disclosure of these communications are privileged under Sections 123 and 124 read with Section 62 of the Evidence Act, and disclosure or production of the same cannot be compelled through the impugned order. He has brought to our notice during the course of hearing on the basis of averments and record, that are part of the supplementary affidavit dated 16.06.2019, that the Investigating Officer has moved an application dated 11.06.2019 before the Court of the Special Judge (Ant-Corruption Act), Varanasi seeking issue of a search warrant under Section 93 of the Code authorizing the Investigating Officer to search the office of the Controller of Examination, PSC, and to seize incriminating documents, if any, including those with reference to which objections to the impugned order are raised by the petitioners, founded on the privilege claimed. We have perused the said application, which is indeed in good measure founded on account of non-disclosure of information sought through paragraphs 2, 4, 5 & 6 of the impugned order. However, we must remark here that added features to this application are the supplementary statements of the former Controller of Examination of the Commission, Smt. Anju Katiyar and Kaushik Kumar Kar, the Consultant of the Secured Press in question. It figures in the application that Smt. Anju Kariyar had sent keys to the safe custody locker of the Commission, through her husband, to the Secretary and further that some documents are lodged in the aforesaid safe custody locker. The Investigating Officer has expressed an apprehension that the aforesaid documents could be tampered with or removed, about which there is imminent likelihood. We do not wish to remark further about this application per se, except that what we are concerned in this petition is the validity of the impugned order. In the event the disclosure of information and production of documents sought through the order impugned is in accordance with law, the process under Section 93(1)(a) of the Code is a logical corollary to a valid written order passed under Section 91 of the Code by the Officer In-charge of a Police Station remaining uncomplied with; of course, to be issued in accordance with law by the Court seized of the matter. This is all the more so, as that Court would not have to deal with any objection based on privilege from disclosure or production as we are deciding that question here.
42. Before we proceed further, it is imperative to briefly set out what that information and/ or documents are, the disclosure and/ or production whereof is sought by the Investigating Agency, through the impugned order, vide paragraphs 4, 5 & 6. The information aforesaid sought through paragraphs 4, 5 & 6 of the impugned order is detailed infra (translated into English from Hindi vernacular):
"(1) Para 4 of the impugned order - The procedure followed for getting question papers printed, the procedure adopted in selection of Security Printers (Security Printing Presses) and the entire operational particulars with documents regarding both these procedures.
(2) Para 5 of the impugned order - The total number of Printing Presses which the U.P. Public Service Commission employ for the printing of its question papers.
(3) Para 6 of the impugned order - A list of all work orders given to M/s. Blessing Secure Press Pvt. Ltd., Kolkata by the Commission before the examination held on 29.07.2018, and thereafter till date."
43. The submission of Sri Anoop Trivedi, learned senior counsel appearing on behalf of the Commission as regards information sought vide paragraph 2 of the impugned order is that the same cannot be given as it is an intra-departmental proceeding carrying communications made in official confidence, that is privileged under Section 124 of the Evidence Act. He submits that once privilege is claimed in regard to the said information, the law declared by the Supreme Court in Sodhi Sukhdev Singh (supra) bars the right of the Investigating Agency to seek disclosure of that part of the information covered by paragraph 2 of the impugned order, regarding which the Commission claim privilege. This part of paragraph 2, as already said hereinabove, is to the effect that record of the proceedings of the Commission, including documents that were taken into consideration while arriving at a decision to declare the result be produced before the Investigating Agency. So far as the objection to the disclosure of this part of the information sought through the impugned order based on the law in Sodhi Sukhdev Singh (supra) is concerned, we have already held that the law in Sodhi Sukhdev Singh (supra) is no longer good law in view of the Seven Judge bench decision of their Lordships in S.P. Gupta (supra). Thus, it is this Court which has to decide whether the aforesaid information by being permitted to be withheld from the Investigating Agency would serve greater public interest, or by its disclosure to the Investigating Agency that is investigating a crime here relating to leakage of a certain question paper, and may be much more to it.
44. According to Sri Anoop Trivedi, so far as the information sought through paragraphs 4, 5 & 6 is concerned, its disclosure to the Investigating Agency or production of documents demanded as part of that information through the impugned order, would lead to breach of highly confidential information that concerns affairs of the State. In any case, it is information to which the privilege of official communication made in confidence, under Section 124 of the Evidence Act would attach, where no public officer can be compelled to disclose communications made to him in official confidence, when he considers that public interest would suffer by that disclosure.
45. Here also, we must remark that the decision in S.P. Gupta (supra) and consistent authority thereafter, holds that it is the Court that has to finally adjudicate upon a question of privilege claimed, be it under Section 123 or 124 of the Evidence Act. This is so because in the eye of the administrator or the bureaucrat or any functionary who is a party to the lis, an inconvenient decision would always be tempting to claim privilege, if it were to be finally allowed for his asking. The State or its functionaries by the law, as it stands, can claim privilege, but the claim would be no more than a proposal. That proposal is to be disposed of by the Court, one way or the other, after doing a fair balance of the competing public interest involved: the public interest that on the one hand would be subserved by granting the privilege claimed and permitting non-disclosure of the subject information or production of documents, and on the other hand, the public interest that would be fulfilled by advancing the cause of public justice by rejecting the privilege and granting disclosure. Added to it, is the contemporary emphasis on the right to know about public affairs by the citizens, which is also to condition decision making in these times where transparency in public affairs is the rule and confidentiality a remote exception; an exception almost of compulsion based on such factors, such as, security of the State, or may be in certain cases the life and liberty of an individual, or diplomatic relations with a foreign country.
46. However, Sri Trivedi, learned senior counsel has very persuasively argued in support of the privilege claimed as regards paragraphs 4, 5 and 6 of the impugned order on basis, amongst others, that the Commission have a panel of security printers and from these it employs various printers to print question papers for different public examinations. He submits that this panel is confidential and kept out of the reach of the general public, or so to speak, kept scrupulously out of the public domain. This is so as bringing the same to the knowledge of the public in general, or in the public domain can potentially lead to breach of secrecy of the examination process, that is the very essence of it. The identity of printers once known in public domain, the sanctity of public examinations would be seriously impaired. If this information is shared with the Investigating Agency, who would further put this information/ documents as evidence in open Court, it would seriously vitiate the confidentiality of the examination process.
47. It is further argued by the learned senior counsel that the documents sought are in no way necessary or desirable for the purpose of investigation in the present case. According to him, the only matter in issue, that is subject matter of the FIR is the leakage of the 2018 L.T. Grade Assistant Teacher Examination Paper. This was allegedly caused by the Consultant of the Printing Press, Kaushik Kumar Kar, who has admitted that he had printed extra sets of papers provided to him by the Commission, beyond what he was required to print, that have been claimed to be misutilized at some place in Varanasi. It does not show involvement of the Commission. It only shows the complicity of the Printers in some kind of a leakage.
48. It is further argued by the learned senior counsel that by knowing the procedure adopted for the appointment or selection of security printing presses and details of other printing presses employed by the Commission or documents relating to intra-departmental proceedings of the Commission, no assistance would be garnered by the Investigating Agency, so far as the present crime is concerned. Sri Trivedi, therefore, submits that the balance of public interest, that is involved, is one related to preserving the sanctity and secrecy of public examinations with which the Commission have been entrusted under the Constitution. There is no competing or counter-veiling public interest to be subserved by the demanded disclosure of documents and intra-departmental communications made in confidence between functionaries of the Commission, so far as the matter of investigation of the present crime is concerned, that may ultimately go to aid justice, yet in the hands of the Investigator to an extent that it outweighs the public interest of preserving confidentiality of the Commission's Examination Process.
49. Sri Anoop Trivedi, learned senior counsel has submitted further that the objected information/ documents, the disclosure or production of which, the petitioners seek to resist, are clearly privileged both under Sections 123 and 124 of the Evidence Act. It is further submitted that the Head of the Department can, in case of a public body raise objection, if the document/ information sought is privileged under any of the two provisions. He submits that it is the Court alone, who can decide upon the objection taking affidavits of the Head of the Department and the Investigating Agency. It is argued that if an objection is taken by the Head of the Department claiming a privilege to the production of a document or disclosure of an information under Section 123 read with Section 162 of the Evidence Act, or under Section 124 of the said Act, the said objection has to be decided by application of judicial mind, considering the nature of the document or the information sought to be disclosed or produced and balancing the competing public interest involved.
50. Learned senior counsel points out with much emphasis that the present case presents some unconventional difficulty as the question of privilege has arisen in the context of an investigation, and not where it is claimed at the stage of inquiry or trial before a Court. Learned senior counsel submits further that at the stage of investigation when the matter is not yet in Court where objections claiming privilege can be readily taken, there is a temptation on the part of the Investigating Agency to secure information/ documents it desires, by coercive measures. Sri Trivedi submits further that it cannot be the intention of the legislature to render a public official/ public body without a remedy in case information that the public officer considers privileged is sought at the stage of investigation by the Officer In-charge of a Police Station, in accordance with Section 91 of the Code. He argues that the judicial determination of a claim to privilege under sub-Section (3) of Section 91 of the Code, would be rendered otious in case disclosure of information concerning affairs of the State, or intra-departmental communications between officers of the State made in confidence, or documents that fall in the categories covered by Sections 123 and 124 of the Evidence Act, are compelled to be produced at the investigation stage by the Investigating Agency, much before an inquiry or trial commences before the Court. This part of the submissions of Sri Trivedi have been dealt with and disposed of in an earlier part of this judgment. It is for all the reasons indicated there that this Court has proceeded to consider the validity of the objections as to disclosure of information and documents sought through the impugned order, bearing in mind the stage at which the information/ documents have been sought, the likelihood of coercive measures being taken under Section 93 of the Code in enforcement of the impugned order, and of course, accepting that in principle this Court can go into the validity of objections as to privilege against an order under Section 91 of the Code, in exercise of our jurisdiction under Article 226 of the Constitution, and may be in some other jurisdictions, under Section 482 of the Code. There is, therefore, not much to be gained by Sri Trivedi by harping on the point that in order to invite an adjudication of the right to claim privilege over information carried in paragraphs 2, 4, 5 & 6 of the impugned order, this Court should now either permit the petitioners to file an objection before the Court where the application under Section 93 has been filed by the Investigating Agency, or alternatively grant him opportunity of hearing before that Court before issue of warrants on the Investigator's application under Section 93 of the Code.
51. That course of action could be one possible course, but since we have proceeded to hear the petitioners on the merits of their claim as to privilege in this petition under Article 226 of the Constitution, which is a course equally open as held in hereinabove, there is absolutely no basis now to relegate parties back to the Court of the Special Judge, where search warrants under Section 93 of the Code have been applied for by the Investigating Officer. That course would lead to wastage of public time and money, and may be, delay determination of the issue about privilege in an ongoing investigation of a very sensitive nature involved, concerning a pubic examination conducted by a Constitutional Body as high as the State Public Service Commission. As said earlier, and so we do now, after a consideration of the nature of of various information, documents and communications between various officials of the Commission that it would not be appropriate to relegate the parties to the jurisdiction of the learned Special Judge, under Section 93 of the Code, for the purpose of determining this issue regarding privilege involved here.
52. The State have chosen not to file any affidavit in reply or a counter affidavit. They have sought to defend the impugned order on materials available on record of the writ petition, and brought forth further through a supplementary affidavit by the petitioners, dated 16.06.2019. It is submitted on the merits of the matter by Sri S.K. Pal that the claim to privilege under Section 123 of the Evidence Act has not been made at all in accordance with law. He submits that a claim to privilege, should generally be made by the Head of the Department concerned, and the affidavit made in support of such a claim should show that each document in respect of which the claim has been made, has been individually and carefully examined by the person making the affidavit. There should be a specific assertion based on appraisal of each document, record or information, in respect of which privilege is claimed by the Head of the Department that he is satisfied that its disclosure, would lead to injury to public interest. Sri Pal submits that once this is scrupulously done, the Court may look into the claim, if required, by summoning the relevant documents and then decide upon the veracity of it, based on the two competing public interest at play.
53. In support of the aforesaid contention, Sri S.K. Pal, learned Government Advocate has relied upon the decision of the Supreme Court in Amar Chand Butail vs. Union of India4. He has invited our attention to paragraphs 11 and 12 of the report, where law on the point has been succinctly laid down by their Lordships in the following words:
"11. The other aspect of the problem decided in that case relates to the manner in which privilege should be claimed. It was stated in that case that the claim should generally be made by the Minister incharge who is the political head of the department concerned and the affidavit made in that behalf should show that each document in respect of which the claim is made has been carefully read and considered, and the person making the affidavit is bona fide satisfied that its disclosure would lead to public injury. It is in the light of these two principles that the point raised by Mr Setalvad before us falls to be decided.
12. As we have already indicated, a document signed by the Home Minister of Himachal Pradesh had been filed, but it is urged by Mr Setalvad that this document cannot be treated as an affidavit at all. No doubt it contains the statement that it is solemnly affirmed but the person who made that statement probably was not familiar with the requirements which had to be satisfied in making an affidavit. The learned Additional Solicitor-General had to concede that on the face of it, the document cannot be treated as an affidavit which is required to be filed for the purpose of making a claim for privilege. On this preliminary ground alone the claim for privilege can be rejected.
54. In the present case, Sri S.K. Pal, learned Government Advocate submits that the claim has been put forward before this Court for the first time on the pretext that this is a case where the information regarding which disclosure was sought, or the documents that were required to be produced, was not during the course of an inquiry, trial or other proceeding before a Court, but an order in writing made under Section 91 of the Code, at the stage of investigation. The learned Government Advocate submits that even if that were so, and assuming that, he submits for the sake of argument alone, without admitting that to be the lawful course of action, the earliest in point of time in the context of a written order under Section 91, the claim to privilege is one raised before this Court for the first time, the rigour of the Rule regarding the manner in which privilege is to be claimed would apply to the fulfillment of that requirement in this writ petition. Sri Pal submits that proceeding on the assumption that it is this writ petition where the petitioners have set up their claim to privilege in respect of information and documents covered by paragraphs 2, 4, 5 & 6 of the impugned order (as confined at the hearing), the established manner for claiming privilege would make it imperative that this petition be supported by an affidavit of the Head of the Department. In this case, according to Sri Pal, the Head of the Department would be no one less than the Chairman of the Commission. He submits that it is the Chairman, who could claim privilege under Section 123 or 124 read with Section 162 of the Evidence Act. That too, could be done through an affidavit clearly indicating with reference to specific documents or information, the production or disclosure of which is sought through the impugned order, that each of the relative document or information or communication in respect of which privilege is claimed, has been carefully read and considered by the person making the affidavit, who should have further said that on doing so he is satisfied bona fide that its production or disclosure would lead to public injury of such magnitude, that would outweigh the other competing public interest. Sri S.K. Pal, learned Government Advocate points out that the present petition is supported by an affidavit of one Brijendra Kumar Dwivedi, a Joint Secretary to the Commission. He is by no means even proximate in hierarchy to the Head of the Department. It is also urged that privilege of whatever kind that has been claimed for a fact through assertions made in paragraph 59 of the writ petition, says in vague terms that the documents and information sought by the S.T.F. from serial no.1 to 6, as well as serial no.8, pertains to unpublished official records and communication between public officials made in confidence, and then goes on to vaguely say that if the documents and information so sought were disclosed to respondent no.3, it would have the potential to compromise the sanctity of the examinations conducted by the Commission in future. It is submitted by Sri Pal that the aforesaid averment is way far from the desired essential requirements to claim privilege regarding a document, about which the law is clearly spelt out by the decision of their Lordships in Amar Chand Butail (supra).
55. It is further pointed out by Sri S.K. Pal, learned Government Advocate that the claim to privilege raised through this writ petition is not only based on an afterthought, but is a claim to privilege, that can never be made as it has already been waived in writing by the petitioners through memo no. 31/ अति गोपन - 1/2018-19 dated 3rd June, 2019 issued by the Nodal Officer/ Joint Secretary to the Commission and addressed to the Circle Officer, Pindara, Varanasi. He points out that in the said memorandum, there is not a word said in objection to any of the information demanded by the Investigating Officer on the basis of privilege or otherwise. He points out that in answer to paragraph 2 of the impugned order, the Joint Secretary to the Commission has disclosed most of the information and the part to which now privilege is claimed, no objection has been conveyed. There is absolutely no mention of a privilege with regard to the information sought vide paragraph 2. Likewise, with regard to paragraphs 4, 5 & 6, that have been answered through paragraphs 4 & 5 of the memo dated 3rd June, 2019, no kind of objection relating to the disclosure or production of information or document, subject matter of the said paragraphs in the impugned order has been indicated. He points out that in paragraphs 2, 4 & 5 of the memo dated 03.06.2019 under reference, there is no hint of a privilege claimed on behalf of the Commission, conveyed to the Investigating Officer. The submission of Sri Pal is that once an objection as to privilege against disclosure of information or the production of documents relating to whatever is the subject matter of paragraphs 2, 4, 5 & 6 of the impugned order, that is now objected to as privileged before this Court, has not been raised before the Investigating Officer through the communication sent by the Commission in answer to the impugned order, the claim to privilege now stands waived. According to Sri Pal, it expressly stands waived in writing by the petitioners, once the impugned order has been responded to by the Commission, with not a word said to the Investigating Officer that the petitioners intend to claim privilege.
56. To this submission of Sri Pal, Sri Avaneesh Tripathi, who has argued in rejoinder, has submitted that a claim to privilege based on the right under Section 123 or 124 of the Evidence can never be waived. It is so because the privilege in the hands of the individual who is the Head of the Department is held as a public trust and the failure of an individual to raise it, cannot result in its waiver. He submits that a privilege of this kind that affects public interest can be set up at any stage of the proceeding. He also points out that the objections based on a privilege under Section 123 or 124 of the Evidence Act, cannot be raised before a police officer in the nature of things, for a police officer cannot decide such objections. An objection claiming privilege can be raised only before a Court of competent jurisdiction, wherever the issue comes up. Sri Avaneesh Tripathi, therefore, submits that the memo dated 03.06.2019 in failing to raise any objection as to privilege regarding information sought vide paragraphs 2, 4, 5 & 6 of the impugned order does not constitute waiver of that right. It is also argued by Sri Avaneesh Tripathi that Anil Rai, Circle Officer, Pindara, the Investigating Officer of the S.T.F. is a very insolent, impertinent and aggressive officer, who has scant regard for the niceties of protocol. Sri Tripathi has gone to the extent of submitting that because of his impertinent and aggressive behaviour in dealing with a Constitutional Body, like the Commission, no objection was raised before him by the Commission and their officers, for the fear that he may not resort to some violence with the Commission and its officials.
57. We have given a thoughtful consideration to the submissions advanced on both sides. We would, for a first, consider the question regarding the manner in which privilege has been claimed by the petitioners, and in the second place, the issue of waiver of that privilege.
58. It is, indeed, true that the manner in which a privilege is to be claimed under Section 123 read with Section 162 of the Evidence Act is by far now well settled. It is to be claimed generally by the Head of the Department who, by their Lordships' authority in Amar Chand Butail (supra), was considered to be no less than the Minister In-charge of the Department. The law laid down there by their Lordships has not suffered any change, as a wide and general proposition. A claim to privilege under Section 123 of the Evidence Act as per settled practice in this country according to the words of their Lordships in State of U.P. vs. Raj Narain and others5, is to be brought in the form of an objection raised through an affidavit affirmed by the Head of the Department. In this regard, in State of U.P. vs. Raj Narain (supra), it was said thus:
"42. It is now the well settled practice in our country that an objection is raised by an affidavit affirmed by the head of the department. The Court may also require a minister to affirm an affidavit. That will arise in the course of the enquiry by the Court as to whether the document should be withheld from disclosure. ......"
59. It is noticed that in the present case assuming that the claim to privilege has been raised for the first time before this Court, the writ petition is not supported by an affidavit of the Head of the Department at all. No doubt, in the case of a State Public Service Commission, no one less than the Chairman of that Commission would fall within the definition of the Head of the Department, considering that the Public Service Commission is a Constitutional Body, and not a Department of the Government headed by a Minister. A matter as serious as privilege cannot be left to be raised on an objection before the Court through an affidavit of a subordinate functionary, like a Joint Secretary, which is precisely the case here. It has to be noticed that the affidavit filed in support of this petition was sworn on 2nd June, 2019, and the writ petition was presented in the Registry on 3rd June, 2019. It came up before the Court for the first time on 6th June, 2019 when the learned A.G.A. sought time to seek instructions leading the matter to be adjourned to June of 17th. On the 17th, a formal amendment application was allowed and the matter was posted to the 18th. On the 18th, it was heard for a considerable period of time with both sides addressing the Court in support of their respective case. A supplementary affidavit was filed on that date on behalf of the petitioners sworn on 6th June, 2019. During this hearing, this objection had specifically been taken on behalf of the State by the learned Government Advocate, but no steps were taken by the petitioners to support the writ petition by a personal affidavit of the Head of the Department/ Chairman of the Commission, at least regarding those assertions in the petition where privilege was claimed under Section 123 of the Evidence Act. On 19.06.2019, the learned counsel for the petitioners concluded his argument and the matter was posted to the 20th for the learned Government Advocate to be heard in reply. The learned Government Advocate was heard on June the 20th, 2019, in support of the stand of the State, and all through the day's hearing Sri Avaneesh Tripathi, learned counsel for the petitioners remained present. The matter was again adjourned to the 21st, when the learned Government Advocate concluded his reply and Sri Avaneesh Tripathi was heard in rejoinder. During all this while, there was neither any prayer or effort made to bring on record an affidavit of the Head of the Department, in support of the claim to privilege, that is the sheet anchor of the petitioners' case here. We are, thus, of considered opinion that consciously the petitioners have thought it fit not to support their claim to privilege under Sections 123 and 124 of the Evidence Act, regarding disclosure of information and production of documents required by the impugned order by a personal affidavit of the Head of the Department. Even if for a while we ignore this aspect of the matter and proceed on basis that the Head of the Department claimed privilege through an affidavit of a Joint Secretary to the Commission, filed before this Court, and look into the contents of the writ petition, where the claim to privilege is most eloquently made, we find it to be made in vague terms. It has been made in paragraph 59 of the writ petition, which reads thus (omitting the quoted portion carrying reproduction of statutory provision):
"59. That it is vehemently brought before the notice of this Hon'ble Court that the information and documents sought by the S.T.F. under the impugned notice u/s 91 CrPC, cannot be legally sought under the present section. For ready reference Section 91 is quoted as under:-
"91. x x x A bare perusal of the said section would, inter alia, demonstrate following things:
a) Under Section 91, a police officer/ court can only summon a document/ information if the same is 'necessary' and 'desirable' for the purposes of enquiry, investigation and trial.
b) Only such information can be sought which is not barred by Section 123 and 124 of the Indian Evidence Act, 1972.
In the light of the point (b), reference must further be made to Section 123 and 124 of the Indian Evidence Act:
123. Evidence as to affairs of State. x x x
124. Official communications. x x x It would transpire that by virtue of Section 91 proviso that the communications/ documents which are officially privileged under Section 123/123 of the Indian Evidence Act cannot be sought by the police officer by giving a notice under Section 91 CrPC and if the disclosure of same would hamper public interest. It is humbly submitted before this Hon'ble Court that the documents and information sought by the S.T.F. from serial no. 1 to 6 as well as serial no. 8 pertains to unpublished official records and communications between public officials made in official confidence. The Respondent No. 3 has sought varied information regarding printers of question paper as well as the with regard to the intra-department communication and decision making with respect to the present case. The nature of documents and information so sought, if disclosed to Respondent No. 3, would have the potential to compromise the sanctity of the examinations to be conducted by the Commission in future. Hence the same fall within the ambit of Section 123 and 124 of the Indian Evidence Act and are thereby subject to the rigour of the proviso to Section 91 CrPC."
60. A perusal of the aforesaid paragraph shows it far from what meets the standards required of a claim to privilege under Sections 123 and 124 of the Evidence Act. The law requires that the affidavit filed in support of a claim to privilege should show that each document in respect of which the claim is made has been carefully read and considered by the maker of the affidavit, and that such person is bona fide satisfied that its disclosure would lead to public injury as held by their Lordships of the Supreme Court in Amar Chand Butail (supra). Assuming that the Joint Secretary who has sworn the affidavit was competent, upon instructions received, to claim the privilege under reference, we find nothing in paragraph 59 that says that he had spared any serious consideration to each of the documents or information or communications in respect of which in omnibus and vague terms, privilege has been claimed. The paragraph does not show that the deponent had read the relative documents, communications or information and formed a bona fide satisfaction that disclosure of that information or communication, or the production of any specific document would lead to public interest being prejudiced. It has been asserted in very vague terms in the paragraph under reference that the documents and the information demanded by the respondents, that figure in paragraphs 1 to 6 and 8 of the impugned order involve unpublished official records and communication between public officials made in official confidence, and that disclosure or production of the same, have the potential to compromise the sanctity of the examinations that would be conducted by the Commission. There is no reference to any specific document or particular information. There is also no satisfaction about injury to public interest with reference to particular information formed by the deponent, who is a Joint Secretary to the Commission. Even the affidavit of the Joint Secretary falls far short of the requirement to claim privilege under Sections 123, 124 read with Section 162 of the Evidence Act. This we say on an assumption that the Joint Secretary could file such an affidavit, but that assumption of ours does not detract from the law that requires a claim to privilege under Section 123 or 124 of the Evidence Act to be supported and based on an affidavit of the Head of the Department. Here, decidedly the Head of the Department would be, as already said, the Chairman of the Commission, who has not cared to come up with a personal affidavit, at least in support of the claim to privilege under Sections 123 and 124 of the Act, last mentioned. He has not done so, though there was ample time and opportunity during the course of hearing, where this objection was specifically taken by the learned Government Advocate.
61. There is another aspect of the matter which cannot be ignored. The claim to privilege finds its solitary and most substantial assertion in paragraph 59 of the writ petition. Paragraph 59, supported as it is by the affidavit of Brijendra Kumar Dwivedi, a Joint Secretary to the Commission, is based on information received; but it does not say either in the paragraph or the swearing clause from whom that information is received. We think that if the paragraph is based on information received from the Head of the Department, that is to say, the Chairman of the Commission, that should have figured in the paragraph under reference, or in the swearing clause of the affidavit, the matter being one that goes to the root of it all concerning which an objection as to privilege under Section 123 or 124 of the Evidence Act, is raised. We, thus, find that the objection as to privilege is not at all competently raised in this petition on behalf of the Commission in the manner the law requires it to be raised. Since this objection based on privilege is raised for the first time before this Court, this petition can be dismissed on this ground alone. But, considering the other substantial arguments advanced, we deem it appropriate to deal with those that have been relevantly made about the issues involved.
62. Now, turning to the contention of Sri S.K. Pal, learned Government Advocate that the petitioner Commission have waived their right to object to disclosure of information or production of documents by claiming privilege under Section 123 or 124 of the Evidence Act, inferring that waiver from the memo dated 03.06.2019 addressed on behalf of the Commission to the Investigating Officer of the case, we are of opinion that a privilege of the kind involved that is essentially about public interest, cannot be the subject matter of a waiver. This is so, as what is at stake is not a privilege simpliciter about a right that can be always waived by any party, including the State. This privilege under Section 123 or 124 of the Evidence Act is essentially about guarding public interest, and though, in contemporary times, there would be really very few secrets that the public in general may not be entitled to know, but there would be classes of facts the disclosure of which may endanger National Security or adversely affect diplomatic relations with a foreign State. It is, thus, on account of these few and remote cases that the principle of waiver cannot be applied to a privilege under Section 123 or 124 of the Evidence Act. Indeed, in those rare cases, it has been held that the Court must guard that privilege of the State, even where it is not claimed, say in the case where it appears to the Court that security of State would be at stake. On principle, therefore, even for the minuscule instances or cases of that kind, the principle of waiver has been kept out, in the context of Section 123 last mentioned, as held in State of U.P. vs. Raj Narain (supra), where in paragraph 60 of the report, amongst others, it has been held thus:
"60. A privilege normally belongs to the parties and can be waived. But where a fact is excluded from evidence by considerations of public policy, there is no power to waive in the parties (see in this connection Murlidhar Aggarwal v. State of U.P. [(1974) 2 SCC 472, 483] )."
63. What is left to be examined by this Court is the merits of the claim to privilege regarding information/ documents that are part of paragraphs 2, 4, 5 & 6 in the impugned order. Though this Court has found that the privilege has not been exercised and claimed by the Competent Authority in accordance with law, yet in order to completely and effectively adjudicate the issue of privilege that has been raised about the subject information and documents on behalf of the Commission, this Court proposes to examine the validity of the said claim. We wish to make it clear at this juncture that considering the nature of the information and documents, disclosure of which is sought to be resisted on the ground of privilege under Sections 123 and 124 of the Evidence Act by the Commission, we need not look into those documents or the subject information. This is so because we accept the highest statement about those documents and information of which disclosure/ production is sought vis-a-vis the question of detrimental effect on public interest, assuming that all these carry sensitive and confidential information about public examinations held by the Commission and its claimed adverse impact on public interest to be correct; we propose to balance that detrimental effect to public service or public interest by reason of disclosure of the subject information or production of documents as against the competing public interest of administration of justice that is involved in the background of the facts of this case, as well as ensuring the purity of the public service examinations.
64. We propose on these parameters to assess which of the two competing public interest would overweigh. In the course of this exercise, we would also venture to examine whether the Public Service Commission, in the present case, and on their highest statement about the sensitive nature of the information involved, that is sought to be disclosed or documents that are required to be produced, indeed constitute such evidence derived from unpublished official records relating to affairs of the State, as would amount to disclosure of communications made to a public officer in official confidence, the disclosure of which the Head of the Department or the public official concerned, in case of Section 124 of the Evidence Act, may justly consider to be one by the disclosure of which public interest would suffer.
65. Before we proceed to consider the information sought to be disclosed, or documents asked to be produced by the impugned order in respect of which privilege is claimed on parameters delineated hereinabove, we may do a short survey of authorities on this issue, and the way the perspective of law has developed and changed over time.
66. In this context, the parameters on which a privilege under Section 123 of the Evidence Act can be exercised and ought to be permitted finds classic statement of the law in a decision of the House of Lords in Duncan vs. Cammell Lair & Co.6, where Lord Simon L.C. said thus:
"Although an objection validly taken to production on the ground that this would be injurious to the public interest is conclusive, it is important to remember that the decision ruling out such documents is the decision of the judge. Thus, in the present case, the objection raised in the respondents' affidavit is properly expressed to be an objection to produce "except under the order of this honourable court." It is the judge who is in control of the trial, not the executive, but the proper ruling for the judge to give is as above expressed.
In this connection, I do not think it is out of place to indicate the sort of grounds which would not afford to the minister adequate justification for objection to production. It is not a sufficient ground that the documents are "state documents' or "official" or are marked "confidential." It would not be a good ground that, if they were produced, the consequences might involve the department or the government in Parliamentary discussion or in public criticism, or might necessitate the attendance as witnesses or otherwise of officials who have pressing duties elsewhere. Neither would it be a good ground that production might tend to expose a want of efficiency in the administration or tend to lay the department open to claims for compensation. In a word, it is not enough that the minister of the department does not want to have the documents produced. The minister, in deciding whether it is his duty to object, should bear these considerations in mind, for he ought not to take the responsibility of withholding production except in cases where the public interest would otherwise be damnified, e.g., where disclosure would be injurious to national defence, or to good diplomatic relations, or where the practice of keeping a class of documents secret is necessary for the proper functioning of the public service.
When these conditions are satisfied and the minister feels it is his duty to deny access to material which would otherwise be available, there is no question but that the public interest must be preferred to any private consideration. The present opinion is concerned only with the production of documents, but it seems to me that the same principle must also apply to the exclusion of verbal evidence which, if given, would jeopardise the interests of the community. Indeed, the language of LORD ELDON, above quoted, implies this. After all, the public interest is also the interest of every subject of the realm, and while, in these exceptional cases, the private citizen may seem to be denied what is to his immediate advantage, he, like the rest of us, would suffer if the needs of protecting the interests of the country as a whole were not ranked as a prior obligation."
67. The aforesaid statement of the law indicates possibly what public interest would mean in connection with affairs of the State as envisaged under Section 123 or 124 of the Indian Evidence Act. We may notice that there is a consistent shift in the trend of authority from one leaning more in favour of secrecy, in earlier times, when Sodhi Sukhdev Singh (supra) was decided to ever increasing transparency over time. In fact, it has rightfully been said of change in the law developing under the umbrella of a democratic constitution, that in the past secrecy about affairs of the State was the rule and disclosure an exception. That position is reversed. Now, the State has to function under the constant vigil of the citizens, empowered by the Right to Information Act, 2005, where all affairs of the State save a very few exceptions, can be shielded from public disclosure on grounds of privilege under Section 123 or 124 of the Evidence Act.
68. It may be noticed here that the law as it stood in Sodhi Sukhdev Singh (supra) has undergone a seachange. It spoke about the decision of the Head of the Department declining production of certain documents on ground of privilege under Section 123 of the Evidence Act as final, which the Court was held not entitled to compel production. In that case, of course, the document was regarded as one relating to affairs of the State, which was a report submitted by the Public Service Commission to the Council of Ministers, concerning a claim by a District Judge in the erstwhile State of Pepsu, who had been removed from service while the State was under the President's Rule. His claim was based on a representation that was considered by the Council of Ministers, as in the meantime, an elected Government had come into office. The Council express its views in the form of a resolution on the representation preferred by Sodhi Sukhdev Singh, but they considered it appropriate to seek the advice of the Public Service Commission, before making a final order. It was this advice of the Public Service Commission, which became the subject matter of a claim to privilege under Section 123 of the Evidence Act, when Sodhi Sukhdev Singh filed a suit to declare the order of his removal from service illegal, void and inoperative with consequential relief for recovery of arrears of salary. There is a reference to the relevant paragraphs deciding the issue whether the document indeed related to affairs of the State, and as to whose decision about the claimed privilege would be final, indicated in the earlier part of this judgment. Those paragraphs of the report have been quoted supra. But, Sodhi Sukhdev Singh (supra) is a decision of their Lordships which reflects the contemporary view of the law at that time about how various decisions of the State could liberally be regarded as those relating to affairs of the State, the disclosure of which would harm pubic interest. Of course, the other aspect of the law that it was the Minister or the Head of the Department whose opinion about the claimed privilege was final, once a document was regarded as one relating to affairs of the State by the Court, and not a matter for the Court to decide whether the privilege claimed was indeed in public interest, has also changed completely, as detailed hereinabove.
69. There was a shift in this approach of the Court earlier leaning towards secrecy for the State's asking on a claim to privilege from disclosure, and, particularly, about the Head of the Department's opinion that disclosure of a document would, in fact, prejudicially affect public interest being final, in Amar Chand Butail (supra), where their lordships held thus:
"13. But on the merits also we feel no doubt in rejecting the said claim. The statement made by the Home Minister does not show that he seriously applied his mind to the contents of the documents and examined the question as to whether their disclosure would injure public interest. We are constrained to observe that this case illustrates how a claim for privilege can be and is sometimes made in a casual manner without realising the solemnity and significance attached to the exercise of the power conferred on the head of the department to make that claim. As we will presently point out, one of the documents which was produced before us under our directions would tend to show that the sole reasons for claiming privilege in respect of that document was the fear rightly entertained that the disclosure of the said document would entirely defeat the whole of the defence made by Respondents 1 and 2. Since it was necessary for us to consider whether the claim had been rightly upheld by the courts below, we directed Respondents 1 and 2 to produce the said documents before us for our inspection. Accordingly such of the documents as were available have been produced before us and it is to one of them that we propose to refer. Having seen all the documents produced before us, we were satisfied that the claim for privilege made by Respondent 2 was not justified at all and may even be characterized as not bona fide."
70. Again, in State of U.P. vs. Raj Narain (supra), the view of the law persisted in its change in favour of allowing power to the Court to decide upon an objection as to privilege finally, instead of accepting the word of the Head of the Department on the issue to be final, wherever the document was considered to be related to affairs of the State. It was also held in State of U.P. vs. Raj Narain (supra) that to justify a privilege, secrecy must be indispensable to induce freedom of official communication or efficiency in transaction of official business which is there in cases of rare genre, like National Security. Most official communications and documents do not fall into such rare class as National Security or relations with a foreign State . The law laid down in all this regard in State of U.P. vs. Raj Narain (supra) is summarized in paragraphs 69 to 80 of the report, where it has been held by their Lordships thus:
"69. In Sodhi Sukhdev Singh case this Court held that there are three views possible on the matter. The first view is that it is the head of the department who decides to which class the document belongs. If he comes to the conclusion that the document is innocent, he can give permission to its production. If, however, he comes to the conclusion that the document is noxious, he will withhold that permission. In any case, the Court does not materially come into the picture. The second view is that it is for the Court to determine the character of the document and if necessary to enquire into the possible consequence of its disclosure. On this view, the jurisdiction of the Court is very much wider. A third view which does not accept either of the two extreme positions would be that the court can determine the character of the document and if it comes to the conclusion that the document belongs to the noxious class, it may leave it to the head of the department to decide whether its production should be permitted or not, for, it is not the policy of Section 123 that in the case of every noxious document the head of the department must always withhold permission. The Court seems to have accepted the third view as the correct one and has said:
"Thus, our conclusion is that reading Sections 123 and 162 together 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 is a matter for the authority concerned to decide; but the court is competent, and indeed is bound, to hold a preliminary enquiry and determine the validity of the objections to its production, and that necessarily involves an enquiry into the question as to whether the evidence relates to an affair of State under Section 123 or not."
As it was held in that case that the Court has no power to inspect the document, it is difficult to see how the Court can find, without conducting an enquiry as regards the possible effect of the disclosure of the document upon public interest, that a document is one relating to affairs of State as, ex hypothesi, a document can relate to affairs of State only if its disclosure will injure public interest. It might be that there are certain classes of documents which are per se noxious in the sense that, without conducting an enquiry, it might be possible to say that by virtue of their character their disclosure would be injurious to public interest. But there are other documents which do not belong to the noxious class and yet their disclosure would be injurious to public interest. The enquiry to be conducted under Section 162 is an enquiry into the validity of the objection that the document is an unpublished official record relating to affairs of State and therefore, permission to give evidence derived from it is declined. The objection would be that the document relates to secret affairs of State and its disclosure cannot be permitted; for, why should the officer at the head of the department raise an objection to the production of a document if he is prepared to permit its disclosure even though it relates to secret affairs of State? Section 162 visualizes an enquiry into that objection and empowers the Court to take evidence for deciding whether the objection is valid. The Court, therefore, has to consider two things; whether the document relates to secret affairs of State; and whether the refusal to permit evidence derived from it being given was in the public interest. No doubt, the words used in Section 123 "as he thinks fit" confer an absolute discretion on the head of the department to give or withhold such permission. As I said, it is only if the officer refuses to permit the disclosure of a document that any question can arise in a court and then Section 162 of the Evidence Act will govern the situation. An overriding power in express terms is conferred on the Court under Section 162 to decide finally on the validity of the objection. The Court will disallow the objection if it comes to the conclusion that the document does not relate to affairs of State or that the public interest does not compel its non-disclosure or that the public interest served by the administration of justice in a particular case overrides all other aspects of public interest. This conclusion flows from the fact that in the first part of Section 162 of the Evidence Act there is no limitation on the scope of the Court's decision, though in the second part, the mode of enquiry is hedged in by conditions. It is, therefore, clear that even though the head of the department has refused to grant permission, it is open to the Court to go into the question after examining the document and find out whether the disclosure of the document would be injurious to public interest and the expression "as he thinks fit" in the latter part of Section 123 need not deter the Court from deciding the question afresh as Section 162 authorises the Court to determine the validity of the objection finally (see the concurring judgment of Subba Rao, J. in Sukhdev Singh case).
70. It is rather difficult to understand, after a court has inquired into the objection and found that disclosure of the document would be injurious to public interest, what purpose would be served by reserving to the head of the department the power to permit its disclosure because, the question to be decided by him would practically be the same, namely, whether the disclosure of the document would be injurious to public interest -- a question already decided by the Court. In other words, if injury to public interest is the foundation of this so-called privilege, when once the Court has enquired into the question and found that the disclosure of the document will injure public interest and therefore it is a document relating to affairs of State, it would be a futile exercise for the minister or the head of the department to consider and decide whether its disclosure should be permitted as he would be making an enquiry into the identical question. It is difficult to imagine that a head of the department would take the responsibility to come to a conclusion different from that arrived at by a court as regards the effect of the disclosure of the document on public interest unless he has or can have a different concept of public interest.
71. Few would question the necessity of the rule to exclude that which would cause serious prejudice to the State. When a question of national security is involved, the Court may not be the proper forum to weigh the matter and that is the reason why a minister's certificate is taken as conclusive. "Those who are responsible for the national security must be the sole judges of what national security requires." [ Lord Parker of Weddington in The Zamora, (1916) 2 AC 77, 107] As the Executive is solely responsible for national security including foreign relations, no other organ could judge so well of such matters. Therefore, documents in relation to these matters might fall into a class which per se might require protection. But the Executive is not the organ solely responsible for public interest. It represents only an important element in it; but there are other elements. One such element is the administration of justice. The claim of the Executive to have exclusive and conclusive power to determine what is in public interest is a claim based on the assumption that the Executive alone knows what is best for the citizen. The claim of the Executive to exclude evidence is more likely to operate to subserve a partial interest, viewed exclusively from a narrow department angle. It is impossible for it to see or give equal weight to another matter, namely, that justice should be done and seen to be done. When there are more aspects of public interest to be considered, the Court will, with reference to the pending litigation, be in a better position to decide where the weight of public interest predominates.
72. The power reserved to the Court is a power to order production even though public interest is to some extent prejudicially affected. This amounts to a recognition that more than one aspect of public interest will have to be surveyed. The interests of Government for which the minister speaks do not exhaust the whole public interest. Another aspect of that interest is seen in the need for impartial administration of justice. It seems reasonable to assume that a court is better qualified than the minister to measure the importance of the public interest in the case before it. The court has to make an assessment of the relative claims of these different aspects of public interest. While there are overwhelming arguments for giving to the Executive the power to determine what matters may prejudice public security, those arguments give no sanction to giving the executive an exclusive power to determine what matters may affect public interest. Once considerations of national security are left out, there are few matters of public interest which cannot safely be discussed in public. The administration itself knows of many classes of security documents ranging from those merely reserved for official use to those which can be seen only by a handful of ministers or officials bound by oath of secrecy.
73. According to Wigmore, the extent to which this privilege has gone beyond "secrets of State" in the military or international sense is by no means clearly defined and therefore its scope and bearing are open to careful examination in the light of logic and policy. According to him, in a community under a system of representative Government, there can be only few facts which require to be kept secret with that solidity which defies even the inquiry of courts of justice. [ See Evidence, 3rd Edn., Vol. 8, p. 788]
74. In a Government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security. [ See New York Times Co. v. United States, 29 L Ed 822 : 403 US 713] To cover with veil of secrecy, the common routine business, is not in the interest of the public. Such secrecy can seldom be legitimately desired. It is generally desired for the purpose of parties and politics or personal self-interest or bureaucratic routine. The responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption:
"Whether it is the relations of the Treasury to the Stock Exchange, or the dealings of the Interior Department with public lands, the facts must constitutionally be demandable, sooner or later, on the floor of Congress. To concede to them a sacrosanct secrecy in a court of justice is to attribute to them a character which for other purposes is never maintained -- a character which appears to have been advanced only when it happens to have served some undisclosed interest to obstruct investigation into facts which might reveal a liability. [ See Wigmore on Evidence, 3rd Edn., Vol. 8, p. 790] "
To justify a privilege, secrecy must be indispensable to induce freedom of official communication or efficiency in the transaction of official business and it must be further a secrecy which has remained or would have remained inviolable but for the compulsory disclosure. In how many transactions of official business is there ordinarily such as secrecy? If there arises at any time a genuine instance of such otherwise inviolate secrecy, let the necessity of maintaining it be determined on its merits. [ See Wigmore on Evidence, 3rd Edn., Vol. 8, p. 790]
75. Lord Blaneshburgh said in Robinson v. State of South Australia [ Supra p. 798] that the privilege is a narrow one, most sparingly to be exercised, that its foundation is that the information cannot be disclosed without injury to the public interests and not that the documents are confidential or official which alone is no reason for their non-production. He further said that in view of the increasing extension of State activities into spheres of trading, business and commerce, and of the claim of privilege in relation to liabilities arising therefrom, the courts must duly safeguard genuine public interests and that they must see to it that the scope of the admitted privilege is not extended in such litigation.
76. There was some controversy as to whether the Court can inspect the document for the purpose of coming to the conclusion whether the document relates to affairs of State. In Sodhi Sukhdev Singh case [AIR 1961 SC 493 : (1961) 2 SCR 371] this Court has said that the Court has no power to inspect the document. In the subsequent case Amar Chand Butail v. Union of India [AIR 1964 SC 1658 : (1965) 1 SCJ 243] this Court held that the normal method of claiming privilege was by an affidavit sworn by the head of the department and that, if no proper affidavit was filed, the claim for privilege was liable to be rejected. But, this Court inspected the document to see whether it related to affairs of State. It might be that the Court wanted to make sure that public interest is protected, but whatever be the reason, the Court did exercise the power to inspect the document.
77. In England, it is now settled by the decision in Conway v. Rimmer [(1968) 1 All ER 874 : 1968 AC 910] that there is residual power in court to decide whether the disclosure of a document is in the interest of the public and for that purpose, if necessary, to inspect the document, and that the statement of the head of the department that the disclosure would injure public interest is not final.
78. In Robinson case [ Supra p. 798] the Privy Council took the view that the Court has power to inspect the document in order to decide the question whether it belongs to one category or the other.
79. It is also noteworthy that Lord Denning, M.R. in his dissenting judgment in the Court of Appeal in Conway v. Rimmer [(1968) 1 All ER 874 : 1968 AC 910] has referred to the decision in Amar Chand Butail v. Union of India [AIR 1964 SC 1658 : (1965) 1 SCJ 243] and said that the Supreme Court of India also has come round to the view that there is a residual power in the Court to inspect a document to decide whether its production in court or disclosure would be injurious to public interest.
80. Probably the only circumstance in which a court will not insist on inspection of the document is that stated by Vinson, C.J. In United States v. Reynolds [(1952) 345 US 1] :
"Regardless of how it is articulated, some like formula of compromise must be applied here. Judicial control over evidence in a case cannot be abdicated to the caprice of executive officers. Yet we will not go so far as to say that the court may automatically require a complete disclosure to the Judge before the claim of privilege will be accepted in any case. It may be possible to satisfy the court from all the circumstances of the case, that there is a reasonable danger that compulsion of evidence will expose military matters which, in the interest of national security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the Judge alone in chambers." "
(Emphasis by Court)
71. Again, in S.P. Gupta (supra), which is a Seven Judge Bench decision of their Lordships, the entire law relating to privilege was reviewed and one part of it that relates to making the Court the final arbiter of the question about the validity of the privilege claimed under Section 123 of the Evidence Act, has been referred to earlier. The decision in Sodhi Sukhdev Singh (supra) to the extent that it made the Head of the Department, the final arbiter in the matter of claiming privilege where the Court found the document to be one related to affairs of the State was expressly overruled, as already noticed. But, S.P. Gupta (supra) further liberalized the law relating to privilege under Section 123 of the Evidence Act, and clearly leaned in favour of greater transparency and information to citizens. It was indicated by their Lordships that the provisions of Section 123 of the Evidence Act have to be interpreted in the context of a democratic form of Government, governed by the Constitution, where the citizen's right to be governed by a responsible and accountable Government cannot be realized unless the people have the right to know. The right of the citizens to know true facts about administration of the Country was recognized as one of the pillars of a democratic State. The decision of their Lordships clearly voiced, increased openness in Government. This was all said in the context of privilege under Section 123 of the Evidence Act. The aforesaid clear and marked shift in favour of increased openness and transparency in affairs of the State is best expressed in the words of their Lordships in S.P. Gupta (supra), where it has been held thus:
"63. That takes us to the next question whether the correspondence exchanged between the Law Minister, the Chief Justice of Delhi and the Chief Justice of India is protected from disclosure under any other provision of law. We do not have in India any common law protection under the label of "Crown Privilege" as it was known a decade ago and now called "Public interest immunity" as there is in England and the only provision of law under which such immunity can be claimed is Section 123 of the Indian Evidence Act and therefore, it is this provision which we must now turn to consider. But, before we do so, we would like to indicate the socio-political background in the context of which this section has to be interpreted. It is true that this section was enacted in the second half of the last century but its meaning and content cannot remain static. The interpretation of every statutory provision must keep pace with changing concepts and values and it must, to the extent to which its language permits or rather does not prohibit, suffer adjustments through judicial interpretation so as to accord with the requirements of the fast changing society which is undergoing rapid social and economic transformation. The language of a statutory provision is not a static vehicle of ideas and concepts and as ideas and concepts change, as they are bound to do in a country like ours with the establishment of a democratic structure based on egalitarian values and aggressive developmental strategies, so must the meaning and content of the statutory provision undergo a change. It is elementary that law does not operate in a vacuum. It is not an antique to be taken down, dusted, admired and put back on the shelf, but rather it is a powerful instrument fashioned by society for the purpose of adjusting conflicts and tensions which arise by reason of clash between conflicting interests. It is therefore intended to serve a social purpose and it cannot be interpreted without taking into account the social, economic and political setting in which it is intended to operate. It is here that the Judge is called upon to perform a creative function. He has to inject flesh and blood in the dry skeleton provided by the legislature and by a process of dynamic interpretation, invest it with a meaning which will harmonise the law with the prevailing concepts and values and make it an effective instrument for delivery of justice. We need not therefore be obsessed with the fact that Section 123 is a statutory provision of old vintage or that it has been interpreted in a particular manner some two decades ago. It is not as if it has once spoken and then turned into muted silence. It is an instrument which can speak again and in a different voice in the content of a different milieu. Let us therefore try to understand what voice this statutory provision speaks today in a democratic society wedded to the basic values enshrined in the Constitution.
64. Now it is obvious from the Constitution that we have adopted a democratic form of Government. Where a society has chosen to accept democracy as its credal faith, it is elementary that the citizens ought to know what their Government is doing. The citizens have a right to decide by whom and by what rules they shall be governed and they are entitled to call on those who govern on their behalf to account for their conduct. No democratic Government can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of the Government. It is only if people know how Government is functioning that they can fulfil the role which democracy assigns to them and make democracy a really effective participatory democracy. "Knowledge" said James Madison, "will for ever govern ignorance and a people who mean to be their own governors must arm themselves with the power knowledge gives. A popular Government without popular information or the means of obtaining it, is but a prologue to a force or tragedy or perhaps both". The citizens' right to know the facts, the true facts, about the administration of the country is thus one of the pillars of a democratic State. And that is why the demand for openness in the Government is increasingly growing in different parts of the world.
65. The demand for openness in the Government is based principally on two reasons. It is now widely accepted that democracy does not consist merely in people exercising their franchise once in five years to choose their rules and, once the vote is cast, then retiring in passivity and not taking any interest in the Government. Today it is common ground that democracy has a more positive content and its orchestration has to be continuous and pervasive. This means inter alia that people should not only cast intelligent and rational votes but should also exercise sound judgment on the conduct of the Government and the merits of public policies, so that democracy does not remain merely a sporadic exercise in voting but becomes a continuous process of Government -- an attitude and habit of mind. But this important role people can fulfil in a democracy only if it is an open Government where there is full access to information in regard to the functioning of the Government.
66. There is also in every democracy a certain amount of public suspicion and distrust of Government, varying of course from time to time according to its performance, which prompts people to insist upon maximum exposure of its functioning. It is axiomatic that every action of the Government must be actuated by public interest but even so we find cases, though not many, where Governmental action is taken not for public good but for personal gain or other extraneous considerations. Sometimes Governmental action is influenced by political and other motivations and pressures and at times, there are also instances of misuse or abuse of authority on the part of the executive. Now, if secrecy were to be observed in the functioning of Government and the processes of Government were to be kept hidden from public scrutiny, it would tend to promote and encourage oppression, corruption and misuse or abuse of authority, for it would all be shrouded in the veil of secrecy without any public accountability. But if there is an open Government with means of information available to the public, there would be greater exposure of the functioning of Government and it would help to assure the people a better and more efficient administration. There can be little doubt that exposure to public gaze and scrutiny is one of the surest means of achieving a clean and healthy administration. It has been truly said that an open Government is clean Government and a powerful safeguard against political and administrative aberration and inefficiency.
67. The Franks Committee of the United Kingdom also observed to the same effect while pleading for an open Government. It said in its report at p. 12:
"A totalitarian Government finds it easy to maintain secrecy. It does not come into the open until it chooses to declare its settled intentions and demand support for them. A democratic Government, however, though it must compete with these other types of organisations, has a task which is complicated by its obligations to the people. It needs the trust of the governed. It cannot use the plea of secrecy to hide from the people its basic aims. On the contrary it must explain these aims: it must provide the justification for them and give the facts both for and against a selected course of action. Now must such information be provided only at one level and through one means of communication. A Government which pursues secret aims, or which operates in greater secrecy than the effective conduct of its proper functions requires, or which turns information services into propaganda agencies, will lose the trust of the people. It will be countered by ill-informed and destructive criticism. Its critics will try to break down all barriers erected to preserve secrecy, and they will disclose all that they can, by whatever means, discover. As a result matters will be revealed when they ought to remain secret in the interests of the nation."
So also we find observations in the same strain by Mathew, J. in State of U.P. v. Raj Narain [(1975) 4 SCC 428 : AIR 1975 SC 865 : (1975) 3 SCR 333, 360] : (SCC p. 453, para 74) "In a Government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security. To cover with veil secrecy, the common routine business, is not in the interest of the public. Such secrecy can seldom be legitimately desired. It is generally desired for the purpose of parties and politics or personal self-interest or bureaucratic routine. The responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption."
The need for an open Government where there is access to information in regard to the functioning of Government has been emphasised and the arguments in support of it have been ably and succinctly summarised in the following passage from the book of Dr S.R. Maheshwari on Open Government in India at pp. 95 and 96:
"Administrative India puts the greatest weight on keeping happening within its corridors secret, thereby denying the citizens access to information about them.
Such orientations produce deep contradictions in the larger sociopolitical system of the land which itself is in a state requiring nourishment and care. As the latter is still relatively new and in its infancy, its growth processes inevitably get retarded for want of information about the Government, which means from the Government. Over-concealment of Governmental information creates a communication gap between the governors and the governed, and its persistence beyond a point is apt to create an alienated citizenry. This makes democracy itself weak and insecure. Besides, secrecy renders administrative accountability unenforceable in an effective way and thus induces administrative behaviour which is apt to degenerate into arbitrariness and absolutism. This is not all.
The Government, today, is called upon to make policies on an ever-increasing range of subjects, and many of these policies must necessarily impinge on the lives of the citizens. It may sometimes happen that the data made available to the policy makers is of a selective nature, and even the policy makers and their advisers may deliberately suppress certain viewpoints and favour others. Such bureaucratic habits get encouragement in an environment of secrecy; and openness in Governmental work is possibly the only effective corrective to it, also raising, in the process, the quality of decision-making. Besides, openness has an educational role inasmuch as citizens are enabled to acquire a fuller view of the pros and cons of matters of major importance, which naturally helps in building informed public opinion, no less than goodwill for the Government."
This is the new democratic culture of an open society towards which every liberal democracy is moving and our country should be no exception. The concept of an open Government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression guaranteed under Article 19(1)(a). Therefore, disclosure of information in regard to the functioning of Government must be the rule and secrecy an exception justified only where the strictest requirement of public interest so demands. The approach of the court must be to attenuate the area of secrecy as much as possible consistently with the requirement of public interest, bearing in mind all the time that disclosure also serves an important aspect of public interest. It is in the context of this background that we must proceed to interpret Section 123 of the Indian Evidence Act."
72. In a context that is most apposite to the one in hand a question as to privilege arose before the Punjab and Haryana High Court in State of Haryana vs. K.C. Bangar and another7. The issue arose in the background of an FIR lodged against the former Chairman of the Haryana Public Service Commission, charging him with allegations involving misuse of his official authority. During investigation, a written order under Section 91 of the Code was issued to the Commission on 21st December, 2006, to produce records regarding selection to various posts, except those of lecturers. It was indicated in the order aforesaid that prior to its issue various letters have been addressed by the Investigating Officer asking for those records, but the same were declined by the Commission claiming privilege and stating that the records are confidential in nature, which cannot be provided. The written order dated 21st December, 2006 under Section 91 of the Code was answered by the Commission vide communication dated 4th January, 2007 objecting to the supply of record, claiming privilege. It was also objected to on the ground that the records were already filed in cases that are pending before the High Court and the Hon'ble Supreme Court.
73. On receipt of the said response, the State moved an application before the learned Chief Judicial Magistrate, Hisar praying that search warrants under Section 93 of the Code be issued authorizing the Investigating Agency to search the office of the Public Service Commission, in order to enable them to take records demanded by them for the purpose of proper investigation. This application was contested by the Commission on grounds that it has been moved at the dictates of the political dispensation in power with ulterior motive. Shorn of other details that are not relevant, the application came up for consideration before the learned Chief Judicial Magistrate, Hisar, who rejected the same on the basis, amongst others, that until date when the application was made, there was no specific evidence against the accused. It was also held that general search by way of fishing or roving inquiry, in the guise of process under Sections 91 and 93 of the Code is not lawful. The Commission's claim to privilege against disclosure of certain official communications under Sections 123 and 124 of the Evidence Act, was also a consideration with the Magistrate to refuse process under Section 93 of the Code.
74. The aforesaid order was put to challenge by the Investigating Agency through a revision preferred to the Sessions Judge of Hisar. Before the Sessions Judge, the Investigating Agency/ State claimed that the Haryana Public Service Commission had filed a writ petition challenging inquiry by the State Vigilance Bureau into allegations against their Officers, Members and the Chairman of the Commission, in the matter of acting on extraneous or illegal considerations vis-à-vis various selections made by the Commission. That writ petition was dismissed. It was further submitted on behalf of the State that a Special Leave Petition from the High Court's judgment had been dismissed as withdrawn. It was contended before the Revisional Court, relying upon some observations made by the High Court in the judgment last mentioned, and in addition to that, with reference to privilege claimed under Sections 123 and 124 of the Evidence Act, that there was no application by the Commission made to the Magistrate claiming such privilege; it was urged that in the absence of an application claiming privilege before the Magistrate strictly satisfying the conditions of privilege under Sections 123 and 124 of the Act last mentioned, the Magistrate could not accept the Commission's claim so far as the privilege went. The claim was contested before the Sessions Judge by the Commission. It was said that a number of documents were supplied to the State Vigilance Bureau/ Investigating Agency after dismissal of the writ petition filed by the Commission and privilege was claimed only with regard to certain confidential documents, which in the opinion of the Commission could not be supplied. This privilege was claimed in terms of the provisions of Section 123 and 124 of the Evidence Act asserting that the Head of the Department is the final authority in the matter of claiming privilege. It was also urged that the entire effort of the prosecution is to put the Commission, a Constitutional Body, in a humiliating position. This is how, the High Court has described in precise words the part relating to humiliation alleged by the Commission. There are other factors also mentioned regarding genesis of the proceedings, but those are not material. The learned Sessions Judge did not accept the revision preferred by the State.
75. The reasons as appear from the judgment of the High Court were that the learned Sessions Judge was of opinion that warrants under Section 93 of the Code are to be sparingly issued. The allegations in the FIR were general in nature. There is no requirement under Sections 123 and 124 of the Evidence Act to move a formal application, supported by affidavit, to claim privilege. It was also opined by the learned Sessions Judge that in the event the required documents were handed over to the Vigilance Bureau/ Investigating Agency, it would expose the internal working of the Commission and may affect many selected candidates and result in litigation. It was, however, recorded by the learned Sessions Judge in his order that the Commission did not have any objection to supply any material, except the answer-sheets and interview proceedings signed by the Members of the Commission. The learned Sessions Judge also held that the objection of the Commission to the effect that an application under Section 93(1)(c) of the Code was not maintainable as the same was applicable only with regard to inquiry, trial and other proceedings before the Court, was well founded as there was intentional omission of the word 'investigation', which is there in Section 91 of the Code. The State/ Investigating Agency were at liberty to resort to proceedings under Section 91 of the Code to secure information from the Commission, which the Commission had offered to supply. However, the Commission were given liberty to claim privilege under Sections 123 and 124 of the Evidence Act. It was in that context that the State/ Investigating Agency approached the High Court by means of a petition under Section 482 of the Code.
76. The petition under Section 482 of the Code was allowed by the High Court, setting aside the order of the Courts below, declining to issue search warrants under Section 93 of the Code and subject to a grace period of three weeks, during which the required documents could be produced by the Commission before the Investigating Officer, they were granted liberty to carry out search at the office of the Commission and take relevant papers. In support of aforesaid conclusion, amongst others, the Court in State of Haryana vs. K.C. Bangar and others (supra) held as follows in paragraphs 36, 37, 38, 41, 42, 43, 51, 52 & 53 of the judgment:
"36. The language of Section 123 of the Act shows that the record regarding which the privilege can be claimed should relate to the affairs of the State. The disclosure of the contents whereof should be against the public interest and may cause public injury. The word `State' has not been defined in the Indian Evidence Act, 1872. For the purpose thereof, reference can be made to provisions of the General Clauses Act, 1897. The term `State' is defined in Section 3(58) thereof which is extracted below:-
"Section 3(58) state--
(a) as respects any period before the commence of the Constitution (Seventh Amendment) Act, 1956, shall mean a Part A State, a Part B State or a Part C State; and
(b) as respects any period after such commencement, shall mean a State specified in the First Schedule to the Constitution and shall include a Union territory"
37. A perusal of the above definition of State shows that after the commencement of the Constitution (Seventh Amendment) Act, 1956, the State shall mean a State specified in the First Schedule to the Constitution of India and shall include a Union Territory. Haryana Public Service Commission does not find mention in the list of the States specified in the First Schedule to the Constitution of India.
38. Article 315 of the Constitution of India provides for setting up of Public Service Commissions for Union and the States. Article 320 of the Constitution provides for functions of the Public Service Commissions wherein it provides that it shall be the duty of the Union and the State Public Service Commission to conduct examination for the appointment to the services of the Union and the State respectively. Further, it provides for certain functions for which the Commission is to be consulted on the issues mentioned therein on a reference made to it by the President or the Governor. Meaning thereby the Public Service Commission is merely an authority created under the Constitution with defined functions. The primary duty being to conduct examination for appointments to the services of the Union or the State. In the process written examination as well as interviews are conducted to enable the Commission to prepare comparative merit, to draw final seniority list of the candidates to be recommended for appointment. Though the Commission is amenable to writ jurisdiction of this Court being an authority discharging public function keeping in view Article 12 of the Constitution of India but certainly considering the definition of `State' as provided for under General Clauses Act, 1897 and also seeing the activities thereof, it cannot be opined that any of the activities of the Commission in any manner is related to the affairs of the State, the disclosure of which may result in public injury or would not be in larger public interest. The material/ document in possession of the Commission, for the production of which privilege is claimed by the Commission, is not such with which the security of the State is going to be effected. The citizens' right to know about the administration of the country and the process which is being followed for the purpose of appointment to various public posts, is one of the pillar of democratic set up.
41. The stand of the Commission is that in case the selections are challenged before any Court, the Commission does not have any objection to the production of record to justify the selection. This itself shows that the record is not of the nature as envisaged in Sections 123, 124 of the Act for which the privilege can be claimed.
42. The scheme of Sections 123, 124 of the Act does not envisage a situation where a person claiming privilege can state that he will object to the production of record before Authority `A' whereas he has no objection to the production of the same record before authority `B'. The protection has been given to the State to enable it to claim privilege for production of record with regard to the documents/material which may cause public injury. The public injury will be caused even if that document or information is furnished before any authority as in that case, the privilege is not sought to be enforced. The availability of the privilege under Sections 123, 124 of the Act is in its entirety with regard to a document or information with no distinction or classification of the authorities before whom the record is sought to be produced.
43. Accordingly, in my opinion under Sections 123 and 124 of the Act, the Commission is not State entitled to claim privileges as envisaged therein.
51. In the present case, the privilege was claimed by the Commission before the Court below merely by filing reply to the application filed by the State for issuance of search warrant under the signature of the Secretary to the Commission. The application was not supported by any affidavit. There is no averment that the entire record, the privilege regarding which had been claimed, relates to the affairs of the State and had been examined by the Head of the Department and he was satisfied that the disclosure thereof would be against the public interest and will cause public injury. Still learned Courts below had opined that privilege was rightly claimed by the Commission regarding documents mentioned in the application. The claim in the application filed by the petitioner for issuance of search warrants was with regard to records for selection of SDO (Environment), SDO (Electrical) and SDO (Panchayati Raj).
52. While considering the claim of privilege of the documents, this Court has to consider as to whether the record for which the privilege is claimed, the production thereof will result in public injury or the larger public interest will suffer. If the record/ documents relate to the affairs of the State or the security of the State is involved as has been opined by Hon'ble the Supreme Court in Raj Narain's case (supra), where privilege was claimed regarding the Blue Book for the protection of the Prime Minister when on tour or in travel, the privilege could be claimed. However, if the matter merely relates to the selection of the candidates by an authority against which certain allegations were made, the privilege claimed merely on the basis of the fact that it would disclose working of the Commission or the candidates who have been selected or who are already in Court may be affected, may not be justifiable reason to claim privilege. Transparency in the working and accountability of any institution discharging public functions in a democratic set up is need of the hour. In case the requisite records are furnished by the Commission for the purpose of investigation, the same would not have any effect on the security of the State in fact the Commission had nothing to hide regarding the process of selection followed by it and the same will result in building confidence of the public at large in the functioning of the Commission whereas on the other side if the claim of the Commission for privilege is accepted, the same would be contrary to the public interest.
53. Accordingly, in my considered opinion, no privilege could be claimed for the record of selections made by the Commission."
77. In the concluding paragraph of the decision in State of Haryana vs. K.C. Bangar and others (supra), the Court summarized its opinion on various questions, set forth in paragraph 81, which reads thus:
"81. In view of my above discussions, answers to the questions considered by this Court is as under:-
(i) Public Service Commission cannot be considered to be State for the purpose of claiming privilege for production of records/ documents under Sections 123 and 124 of the Indian Evidence Act, 1872.
(ii) Public Service Commission cannot claim privilege for production of record/ documents under Sections 123 and 124 of the Indian Evidence Act, 1872.
(iii) There is sufficient material on record to justify the issuance of search warrant under Section 93(1)(a) of Cr.P.C in the present case.
(iv) Even if the selections have been upheld by this Court in its writ jurisdiction, the allegations of corruption and illegality in the selections made for extraneous reasons can certainly be gone into by the Vigilance in the process of investigation of FIR.
(v) Even if a person has already availed of his remedy of revision in spite of the fact that a second revision is barred under Section 397 Cr.P.C., this Court can exercise the power under Section 482 Cr.P.C where there is serious miscarriage of justice and abuse of process of Court or where mandatory provisions of law have not been complied with or where the legal issues of general importance are raised or when in the facts and circumstances of the case, this Court feels that inherent jurisdiction is to be exercised to correct the mistake committed by the Courts below."
78. The facts of the case in State of Haryana vs. K.C. Bangar and others (supra) are strikingly similar to those in hand, except certain features as to the course of proceedings adopted to claim and resist privilege, which in the opinion of this Court were pursued by both sides through a more appropriate course, in accordance with the Code. This Court is in agreement with the opinion of the Punjab and Haryana High Court in State of Haryana vs. K.C. Bangar and others (supra) regarding issues relating to the manner in which privilege is to be claimed, in particular, regarding the observations of Bindal, J., where his Lordship has emphasized the need for transparency in the working and accountability of any institution discharging public functions in a democracy, particularly in contemporary times, and further those observations where it is said that the Commission have nothing to hide regarding the process of selection followed by it, the disclosure of which would work to build public confidence at large in the functioning of the Commission, whereas on the other side accepting the claim based on privilege from disclosure would be contrary to public interest. However, this Court is most respectfully unable to subscribe to the view, as well as the reasoning in support, taken by the Punjab & Haryana High Court, in the decision under reference, to the extent it is held that the Public Service Commission is not State for the purpose of Sections 123 and 124 of the Evidence Act.
79. This is so because in the clear understanding of this Court the word ''State' in Sections 123 and 124 of the Evidence Act has been used in a generic sense; in the sense of the body politic, representing the sovereign power of the State. Certainly, in a constitutional democracy like ours, with separation of powers and division of functions, the sovereign power is vested in different organs of the Government, such as the Union and State Legislature, the Union and State Executive, represented by their respective Council of Ministers, headed by the Prime Minister or Chief Ministers, the Judicature with the Supreme Court at the apex, the High Courts at the head of the judiciary in each State, and down the widening base of the judicial pyramid to the District Courts of various grades, besides a number of specialized Tribunals of different rank and jurisdiction. Apart from these organs of the State properly so called, the sovereign power is also shared by certain other important constitutional bodies and functionaries, like the Election Commission, the Comptroller and the Auditor General and, of course, the Public Service Commissions - both Union and State. These bodies in the nature of their functions have been assigned by the Constitution, a specific kind of the sovereign power of the State with constitutional guarantees to ensure their independence, so that they can discharge those functions untrammeled by any extraneous influence. It is in that sense that the word State would undoubtedly apply to all these independent constitutional functionaries.
80. Certainly, when the Evidence Act was drafted way-back in 1872, the Executive Government alone with the concerned Member of the Viceroy's Executive Council and soon after independence, the Minister In-charge of a particular department, could alone be referred to as the Head of the Department in the context of the word ''State', as employed in Section 123 of the Evidence Act. That in contemporary times, would apply to Heads of the various sovereign and independent constitutional bodies, authorities and functionaries, is no strained interpretation of the words of Section 123 of the Evidence Act. It is for that reason that we have considered the Chairman of the Commission to be the Head of the Department in the context of Section 123. His Lordship in State of Haryana vs. K.C. Bangar and others (supra) while taking the view that the Commission is not State for the purpose of Section 123 or 124 of the Evidence Act, with utmost respect, has placed a very narrow construction on that word, where the Court has construed it to mean ''State' as defined in Section 3(58) of the General Clauses Act, 1872. There what is meant by a ''State' or ''States', is in the sense of reference to State's constituting the Union of India, and includes Union Territories, that go to make for India's federal structure under the Constitution, as it is called, with a unitary bias. It is certainly not that connotation of the word ''State', as we read it in the context of Sections 123 and 124 of the India Evidence Act.
81. But, this issue aside the decision of the Punjab and Haryana High Court in State of Haryana vs. K.C. Bangar and others (supra), as already said, has rightly held it to be a much higher public interest to be subserved that transparency be maintained in the functioning of a constitutional body, like the Public Service Commission, and where allegations of corruption and illegalities in selection for extraneous reasons surface, certainly the process of criminal investigation cannot be kept at bay taking shield behind the privilege under Section 123 or 124 of the Evidence Act. To this, we add that it is not only transparency and accountability of an independent constitutional body holding recruitment examinations to public services of the State, but it is also the purity of the process of selection, that the sovereign power exercised by the Commission must at all times guarantee.
82. We are further buttressed in the view that we take by the disapproval of their Lordships of the Supreme Court expressed in re Mehar Singh Saini, Chairman, HPSC and others, In Re8, to the non-cooperation by the Commission in passing different resolutions declining to handover records for investigation to the Investigating Agencies. This was a fall out of all that litigation concerning tainted examinations held by the Haryana Public Service Commission, in particular, the judgment of the Punjab and Haryana High Court in State of Haryana vs. K.C. Bangar and others (supra). This case arose in the context of a reference under Article 317(1) of the Constitution made by the President of India for the removal of the Chairman and Members of the Haryana Public Service Commission to the Hon'ble Supreme Court. In the decision of their Lordships in Mehar Singh Saini, Chairman, HPSC (supra), the disapproval to the conduct of the Commission refusing to handover records for investigation to the Investigating Agencies was expressed in the following words in paragraphs 127, 128, 129 and 130 of the Report:
"127. The other phase of non-cooperation appears to be when, during the period 15-12-2005 to 4-1-2007, all the private respondents in the present petition passed four different resolutions declining to hand over the records for investigation to the authorities concerned. The stand taken was that it is a constitutional body and its record cannot be made available to the investigating agencies even if such a demand was made in furtherance to the complaints, vigilance inquiries and first information reports. These resolutions were passed referring to certain special leave petitions pending before this Court, but strangely no reference was made to the Punjab and Haryana High Court order dated 12-8-2005 [(2005) 141 PLR 486] and/or that of this Court dated 19-9-2005. Bare reading of the resolutions, except resolution dated 4-1-2007, clearly shows that there was non-application of mind. The alleged claim of privilege did not find mention in them and the orders of the courts including the highest court of the land were ignored.
128. The investigating agencies had also demanded, by different letters, the records in relation to FIR No. 20 of 2005. While invoking the provisions of Section 91 of the Code of Criminal Procedure, the agencies issued notice to the Commission but to no avail. An application had also been filed by the State Vigilance Bureau under Section 93 of the Code of Criminal Procedure before the Court of the Chief Judicial Magistrate requesting production of relevant record and for appropriate directions. However, this application was vehemently contested by the Commission, at the behest and at the instance of the Chairman and members of the Commission. The Chief Judicial Magistrate vide order dated 25-10-2007 rejected the application filed by the investigating agencies against which a revision was filed before the learned Sessions Judge, who upheld the order of the Chief Judicial Magistrate vide order dated 30-11-2007.
129. Against the order of the Sessions Judge, revision was filed by the State in the High Court which came to be allowed vide order dated 1-4-2008. In that order, the High Court had clearly held that claim of privilege for non-production of documents with reference to Sections 123 and 124 of the Evidence Act, 1972 was not sustainable or justified. The Court further held that there was sufficient material on record to justify the issuance of search warrant under Section 93(1)(a) of the Code of Criminal Procedure and held that the State had the right to get the records from the Commission for the purpose of investigation and on latter's failure, the provisions of Section 93 of the Code of Criminal Procedure were rightly invoked. It observed that the Commission is a constitutional authority and it would not be in the fitness of things that a search is conducted in its office, but such a situation has been created by it. Liberty was granted to the Commission to produce documents, records before the investigating officer, Inspector of Police, Vigilance (Ambala Range). Despite such unambiguous and clear directions of the Court, the Commission, acting through the private respondents failed to hand over the records but chose to prefer an SLP before this Court being SLP (Crl.) No. 3649 of 2008.
130. This Court on 16-5-2008, granted stay of the operation of the High Court's order. However, the matter continued to be pending for a considerable time before this Court and this SLP was ultimately withdrawn vide order dated 14-12-2009. In the meanwhile, as already stated, four new members had been appointed to the Commission in place of the members whose term had expired. These newly nominated members had taken a decision to hand over the record to the investigating agencies. Fact of the matter remains that for a very considerable time investigations were delayed and the guilty could not be brought to book. There was definite non-cooperation on the part of the private respondents."
83. The preponderance of judicial opinion in the context of Public Service Commissions standing in way of the processes of investigation, is against doing so, particularly, where charges are of corruption in the holding of public examinations. The production of records and disclosure of communications between various officials of the Commission relating to the subject examination, or even in cases where some extended link of a vitiating angle to other examinations appears, is a part of that investigative process, which has been held, in no way to derogate from the independence of the Commission, its credibility or dignity, or that of its Chairman and Members.
84. A thorough investigation where charges of corruption vitiating public examinations held by a Public Service Commission appear, have been favoured by the Courts in order to restore the Commission's credibility, and also to restore purity and fidelity in the process of Public Service Examinations, that are the permanent business of a Commission. In fact, this question arose before this Court in a much wider perspective relating to the Commission in U.P. Public Service Commission through its Chairman and Members vs. Union of India through Secretary, Department of Personnel and Training, Government of India, New Delhi and others9. A notification by the Government of India, dated 21.11.2017 issued in exercise of powers under Section 5(1) of the Delhi Special Police Establishment Act, 1946 with the consent of the State Government, under Section 6 thereof, had extended the powers and jurisdiction of the Delhi Special Police Establishment to the entire State of U.P., enabling them to conduct inquiry/ investigation into serious allegations against the Commission, relating to examinations and results declared between 01.04.2012 to 31.03.2017. The notification was challenged by the Commission through Writ - C no.62997 of 2017 (supra). A Division Bench of this Court by their Lordships' judgment and order dated 28.02.2018 passed in Writ - C no.62997 of 2017 (supra), while discarding the challenge brought on many grounds, including institutional integrity, constitutional immunity of the Chairman and its Members, amongst others, held as under in paragraphs 29, 30, 31 and 32 of the judgment:
"29. Ordinarily, charges of bribery, corruption and the like are of criminal nature but they are also regarded as misbehaviour insofar as the enquiry under Article 317 of the Constitution is concerned. This by itself would not preclude in directing CBI enquiry/investigation into the affairs of a Public Service Commission, if there are complaints of corruption, lack of integrity or any other offence involving moral turpitude against its Members or officials. In the present case, the enquiry/investigation being conducted by the CBI pertains to the relevant period on the basis of a large number of complaints (58) and the seventy eight writ petitions, including four PILs filed in this Court, making serious allegations against the affairs of UPPSC. If, in the course of enquiry, it is found that selections made during the relevant period were tainted and were based upon considerations other than merit, neither UPPSC as a whole nor its Chairman or Members can claim any immunity. Neither the Constitution nor the laws preclude the State Government through appropriate agency from registering an FIR for the alleged irregularities, illegalities and acts of commissions or omissions either by UPPSC as a whole or by its Chairman or Members, involving criminal offence.
30. To make it further clear and to be more precise, let us have a look at the word misbehaviour once again. The expression "misbehaviour" means wrong conduct or improper conduct, as observed by the Supreme Court in Reference No. 1 of 2003 (supra). It has to be construed with the reference and context in which it appears or needs to be understood. Every act or conduct or error of judgment or negligence by a constitutional authority per se does not amount to misbehaviour. Misconduct/misbehaviour implies a creation of some degree of mens rea by the doer. Willful abuse of constitutional office, or misconduct in the office, corruption, lack of integrity or any other offence involving moral turpitude would be misbehaviour, as observed in the said judgment. Persistent failure to perform duties or willful abuse of office would also be misbehaviour. Thus, there is a very thin line between criminal offence and misbehaviour. Judicial finding of a guilt of grave crime by the competent court may also amount to misconduct/misbehaviour, attracting an action of removal under Article 317 of the Constitution. The enquiry, therefore, under Article 317(1) and the enquiry/investigation by an agency, such as CBI, operate in distinct and different jurisdictional areas. When an enquiry under Article 317 is conducted and if allegation of misbehaviour is proved, it culminates into only removal of a Member of Public Service Commission and on the other hand, if the guilt of criminal offence is recorded by competent Court, it ends into conviction, resulting into imprisonment.
31. Thus, the distinction between the enquiry under Article 317 of the Constitution and the enquiry/investigation by the CBI is clear. Indisputably and as has been indicated herein before, several writ petitions, including PILs were filed making serious allegations against the affairs of UPPSC, including the PIL against the erstwhile Chairman of UPPSC Dr. Anil Kumar Yadav. That apart, various complaints had also been received by the State from difference sources, including from the office of Prime Minister and Governor, not only during the regime of the present government but even during the regime of the earlier Samajwadi Party government.
32. We, although, as at present, do not intend to make any observations in regard to the allegations and counter-allegations made by the Commission and State against each other, we only hope and trust that a constitutional authority, like the Commission should neither withhold any document nor refuse to cooperate with the CBI in the matter of conducting enquiry/investigation. If the statements made by the Commission are correct, they have nothing to hide. It would be in the interest of all concerned, including the Chairman and its Members to see that the enquiry should be completed at an early date. The contention raised on behalf of the petitioners that no enquiry of whatsoever nature can be conducted before the enquiry contemplated under Article 317 of the Constitution, in our opinion, deserves to be rejected outright. The Chairman and Members of the Commission, though cannot be removed without following the procedure contemplated under Article 317, cannot claim immunity from being enquired/investigated into the allegations of serious nature, such as corruption in holding examinations, making selections and appointments. If, in the course of enquiry/investigation by the CBI, it is found that the Chairman/Members, past and present, during the relevant period, indulged into illegalities/irregularities amounting to criminal offence, the law will take its own course. In other words, if the selections made during the relevant period are ultimately, in the course of enquiry/investigation by the CBI, found to be tainted or based upon consideration other than merits, the law will take its own course. If the Chairman and Members have not done anything wrong, they need not either hide anything or be worried or anxious about the outcome. The Chairman/Members of UPPSC cannot, in our considered opinion, claim any immunity. They cannot be stated to have a vested right to perpetuate illegality or hide scandal, if any. In our opinion, the UPPSC, through its Chairman has unnecessarily filed the instant petition. In fact, it would be in the interest of all concerned including the Chairman and the Members of UPPSC to see that the enquiry should be completed at an early date. The enquiry/investigation would also ultimately help to inspire confidence in the public mind about the objectivity and impartiality of the selections made during the relevant period and so also the selections to be made in future. Neither the Constitution nor the laws preclude the State Government from holding CBI enquiry/investigation into the complaints of serious nature against the UPPSC as a whole. The enquiry/investigation cannot be stopped merely because it may ultimately reflect on the conduct/behaviour of the Members of the Public Service Commission."
85. A reading of the FIR giving rise to the crime in connection with which the subject information and documents have been required to be produced by the impugned order, shows that there is prima facie evidence of leakage of question paper by one of the Security Printing Presses entrusted with the work of printing not only that paper, but a host of other examination papers over a long period of time. The paper in respect of which leakage has been detected by the Special Task Force is the Assistant Teachers L.T. Grade Examination held on 29th July, 2018. The Security Printing Press involved is Blessing Secure Printing Press Pvt. Ltd, Kolkata. It figures from the FIR that Kaushik Kumar Kar, who is a Consultant with the said Press, was apprehended in connection with leakage of question papers relating to the 2018 Examination of LT Grade Assistant Teachers at Varanasi, where some 50 candidates were acknowledged by Kar, a day before the scheduled examination to have been leaked the question paper, misutilizing extra copies thereof, that he had printed beyond the authorized number, and further that with the aid and assistance of his accomplices, Ranjeet Prasad, Ganesh Prasad and Sanjay Kumar, these candidates a day ahead of the scheduled examination, were made to solve the question papers and cram up the answers.
86. It was also revealed by Kar that from each candidate, a sum of Rs.2.50 to Rs.5.00 lakhs was settled to be realized (by way of illegal gratification). He also revealed that to give effect to all this exercise, he had detailed his accomplice, Ashok Deb Choudhary. It was also revealed that at Varanasi, their local accomplices were one Sanjay, another Ajeet Chauhan, still another Ajay Chauhan and Prabhu Dayal, whose complete address is known to Kar's accomplice, Ranjeet Prasad. It was further revealed by Kar that on 28th July, after sharing the leaked question paper with the fifty candidates (and after getting the same solved), Ranjeet Prasad handed over to Kar a sum of Rs.50 lakhs, and further informed him that by way of guarantee, he had with him the original educational testimonials of the fifty candidates relating to High School, Intermediate Examination, Graduation etc.
87. It was further promised to Kaushik Kumar Kar that after result was declared, the balance of the agreed tainted money at the rate of Rs.2.50 lakhs per candidate would be paid to Kar. It was revealed that Ashok Deb Choudhary was detailed on the job by Kar in some measure by deceit, and in the other by duress, but on account of Choudhary's objection to the entire criminal enterprise, it turned a spoilt job. Kar further revealed that he would pay the Controller of Examinations of the Commission on a percentage basis. He further revealed that for the question paper that he was now carrying (that is on 26.05.2019) to be printed, he had paid the Controller a sum of Rs.10 lakhs. He further revealed to the S.T.F. that the Controller of Examinations would stay very worried about Ashok Deb Choudhary and about all this she would communicate with him over Whatsapp and phone, inquiring all about matters related to Choudhary. Kar further revealed to the S.T.F. that the Controller of Examination told him that the police intended to lodge an FIR against his Company (Blessing Secure Printing Press Pvt. Ltd.), but despite this she was still assigning him job of printing question papers for the upcoming selection examinations. The S.T.F. in the FIR registered have further recorded the fact that on this information revealed, they checked up the mobile phone of Kar, where they found a communication from the Whatsapp Account of UPPSC Controller of Examination, Anju Katiyar, to mobile numbers, one of which is 9140016717 and another mobile number being 9415547402. In the communications from these Accounts, there is conversation concerning the police inquiry with Kar where it has been clearly inquired about matters concerning Ashok Deb Choudhary.
88. It has further been recorded in the FIR that the aforesaid facts clearly disclosed the involvement of Kaushik Kumar Kar and his accomplices in the case of the question paper leakage, along with the UPPSC Controller of Examination, Anju Katiyar. The involvement of the Controller of Examinations has, particularly, been recorded in the FIR because the S.T.F. in their correspondence with the Commission, had clearly informed the Controller of Examination through their letter dated 25.02.2019 that a case against the Secured Press was registered, but still question papers relating to selection examinations yet to be held, were entrusted to the aforesaid tainted press. It was summarized in the first information that it appears to be a matter where there was formation of a gang with insiders to the Commission colluding with the Press in a racket involving leakage of question papers of Public Service Commission Examinations, all for the purpose of taking money by way of illegal gratification; there was a clear criminal conspiracy. Amongst others involved, a case against the candidates of the 2018 Assistant Teacher L.T. Grade Examinations, is also disclosed according to the First Information Report.
89. There is a much detailed First Information Report, that has been scripted in this case by the S.T.F. This is presumably for the reason that the S.T.F. have done, and in the opinion of this Court rightly so, pre-investigation inquiries to verify facts as it concerns affairs of a constitutional body, no less than the State Public Service Commission. Now, that they have discovered in that inquiry facts that not only show the 2018 Examination to be vitiated by breach of confidentiality, where at least 50 candidates to whom the said question paper was leaked by the Printer with the aid of his accomplices and who further extended the facility of solving the papers, a day ahead of the scheduled selection examination, a very detailed FIR has come to be lodged by the S.T.F. The First Information Report also shows that it is not just about the 2018 Examination. It is about subsequent examinations also, that have fallen under a serious cloud as to the fidelity of those examinations, particularly, so as the Press in question has been entrusted with the job of printing question papers relating to examinations now to be held by the Commission, on the basis of decisions taken by the functionaries as high as the Controller of Examinations, who to all seeming, was aware about the fact that the Investigating Agencies were suspecting a leakage of the question paper relating to the 2018 Examination by this press. The said fact is evident from the exchange of Whatsapp messages between Kar, the Consultant of the Blessing Secure Press Pvt. Ltd. and the Controller of Examination, Anju Katiyar, who according to the contents of those Whatsapp messages exchanged between Kar and Anju Katiyar, mentioned in the FIR, expressed her concern about the police inquiry, and particularly, relating to matters concerning Ashok Deb Choudhary.
90. It seems to us on a wholesome reading of the FIR that everything is not well with the Commission and the fidelity of the Service Selection Examinations held by them does require close scrutiny so that the institutional integrity of the Commission, to which they are entitled as a constitutional body, is maintained. We have noticed that this matter does not concern just the Assistant Teachers LT Grade Examination, but from the revelation of Kar, the man who is Consultant of Blessing Secure Printing Press Pvt. Ltd., there seems to be prima facie a continuing breach of fidelity, clandestine and murky dealing with this Press and some officials of the Commission on a regular basis, that would erode the credibility of other examinations also. If what Kar has said to the S.T.F., has a grain of truth to it, the purity of the process of Selection Examinations held by the Commission - many already held and many to be held in future - could all be tainted by leakage of question papers, under hand solutions to question papers being offered by professional solvers and all that, that is the anti-thesis of a sacrosanct selection examination to be conducted by a Public Service Commission.
91. We make it clear that whatever we have said does not and should not prejudice the case of anyone involved, including officers of the Commission or the other accused, and their case has to be judged by every Court and assessed by every Investigating Agency on its own merits, unaffected by any observations of ours made in the course of this judgment. However, we are equally clear that matters disclosed in the FIR and that appear from the record have crossed that threshold, that would entitle the Commission to claim privilege as to official communication, or against production of documents on basis that it relates to affairs of the State. This is so because the facts that have so far emerged disclose to us a much greater public interest, and, that is to ensure that the stream of the Public Service Selection Examination System in the hands of the Commission remains pristinely clean, sublime, flawlessly secure and not besmirched by any such factors that have surfaced in the FIR lodged by the S.T.F. In the process, therefore, if there is any potential to compromise the sanctity of the examinations to be conducted by the Commission in future, we think under the circumstances that is no consideration at all to allow a claim to privilege based on Section 123 or 124 of the Evidence Act. It is so because it is to restore the same sanctity for which the privilege is claimed, that disclosure of the information sought and the documents required to be produced by the impugned order, in our opinion is necessary. We would, therefore, disallow any claim to privilege and uphold the impugned order issued under Section 91 of the Code by the Investigating Officer of the S.T.F.
92. In the result, this writ petition fails and is dismissed. Costs easy.
Order Date :- 4.7.2019 Anoop