446. Procedure to be followed when a servant of the Crown is summoned by a Court to produce official documents for the purpose of giving evidence. [§ 12, Act V, 1861].
(a)The law relating to the production of unpublished official records as evidence in Courts is contained in sections 123, 124 and 162 of the Indian Evidence Act, 1872.(b)For the purposes of section 123, the expression "officer at the head of the department" may be held to mean the head of the office in whose custody the document required by the Court is, and vis-a-vis the Court which demands its production, that officer should be treated as the authority to withhold or give the necessary permission.(c)When an officer receives a summons to produce before a Court any document which he considers to be an unpublished official record relating to an affair of State or to give evidence derived from such a document he should immediately inform the head of his office forwarding the summons with any statement by the Court of the circumstances which render the production of the document necessary, specifying the case in which the production is required.(d)In respect of documents emanating (1) from a higher authority, viz., His Majesty's Government, the Secretary of State for India the Central Government, or the Provincial Government, or which have formed the subject of correspondence with such higher authority, or (2) from other Governments whether foreign or dominion, the head of the department should obtain the consent of the Provincial Government through the usual official channels before agreeing to produce the documents in Court, or allowing evidence based on them unless the papers are intended for publication, or are of a purely formal or routine nature, when a reference to higher authority may be dispensed with.(e)In the case of papers other than those specified in clause (d) above, the head of the department should not allow production of the correspondence if it relates to matters which are generally regarded as confidential or disclosure of which would in his opinion be detrimental to public interests, or to matters which are in dispute in some other connection, or have given rise to a controversy between Government and some other party.The Village Crime Note-Book has in these regulations which are issued under the authority of the Provincial Government been specifically declared to be an unpublished official record and whenever a summons is issued to produce this or any portion thereof or to give evidence derived therefrom it should ordinarily be sufficient for the officer so summoned to bring to the notice of the Court the wording of regulation 391(a).(f)In a case of doubt the head of the department should.invariably refer to higher authority for orders.(g)These instructions apply as well to cases in which Government is a party to the suit. In such cases much will depend on the legal advice as to the value of the documents, but before they are produced in Court the considerations stated above must be borne in mind, and reference to higher authority made, when necessary.(h)The servant of the Crown who is to attend a Court as a witness with official documents should, where permission under section 123 has been withheld, be given an order duly signed by the head of the department in the form below. He should produce it when he is called upon to give his evidence, and should explain that he is not at liberty to produce the documents before the Court, or to give any evidence derived from them. He should however, take with him the papers which he has been summoned to produce.(i)The head of the department should abstain from entering into correspondence with the presiding officer of the Court concerned in regard to the grounds on which the documents have been called for. He should obey the Court's orders and should appear personally, or arrange for the appearance of another officer in the Court concerned, with the documents, and act as indicated in clause (h) above, and produce the necessary certificate if he claims privilege.Order.Summons from the Court of the ______________________________ for the production at of the office files relating to the _____________________________(a)I direct ______________________ to appear with the files mentioned in the summons and to claim privilege for them under section 123 of the Indian Evidence Act, 1872.(b)I withhold permission to give any evidence derived from the files for which privilege is claimed under this order.It should be represented to the Court that these files contain unpublished official records relating to affairs of State for the purpose of section 123 and that in view of the provisions of section 162 of the Indian Evidence Act, 1872, the files are not open to the inspection of the Court.Dated the Head of Department.
