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With regard to documents summoned from the Superintendent of Police the High Court said that because these owe their existence to the Blue Book which is not a privileged document and the Superintendent of Police did not give any reason why the disclosure of the documents would be against public interest, the documents summoned from the Superintendent of Police cannot be privilege documents either.

The High Court further said that in view of the decisions. of this Court in State of Punjab v. Sodhi Sukhdev Singh(1); Amar Chand Butail v. Union of India(2) and the English decision in Conway v. Rimmer & Anr. (3) the Court has. power to inspect the document regarding which privilege is claimed. But because the Blue Book is not an unpublished official record, there is no necessity to inspect the Blue Book.

without filing an affidavit of the Minister concerned or of the head of the department.

Saxena was examined by Court on 10-9-1973. The 1st res- pondent filed an application on that day praying that as no privilege was claimed by Saxena, he should be directed to produce these documents. The Court passed an order on 11-9- 1973 that the application be put up for disposal. As Saxena's examination was not over on 10-9-1973, the Court kept the documents in a sealed cover stating that in case the claim for privilege was sustained, Saxena would be informed so, that he could take back the documents. Examination of Saxena was over on 12-9-1973. On that day, the, Superintendent of Police, Rai Bareily, filed an affidavit claiming privilege in respect of the documents summoned from his office. The Court adjourned the argument in regard to privilege and directed that it be heard the next day. On 13-9-1973 the Court adjourned the hearing to 14-9-1973 on which date the hearing was. again adjourned to 20-9-1973. On 20-9-1973, Saxena filed in Court an application and the Home Secretary to the Government of U.P., Shri R, K. Kaul, the head of the department in question an affidavit claiming privilege for the documents. The argument was concluded on 14-3-1974 and the Court passed the order on 20-3-1974 rejecting the claims for privilege. This appeal, by special leave, is against that order. The first question for consideration is whether the privilege was lost as no affidavit sworn by the Minister in charge or the Head of the Department claiming privilege was filed in the first instance.

	      [see    "Documents Privileged	in    Public
			    Interest"(1)]

But, with the growth of democratic government, the interest of the Crown in these matters developed into and became identified with public interest.

(1) 39 Law Quarterly Rev. 476, at pp 476-477.

In the early days of the nineteenth century, when principles of 'public policy' received broad and generous interpretation we find the privilege of documents recognized on the ground of public interest. At this date, public policy and the interest of the public were to all intents synonymous".

	      (see    "Documents Privileged	in    Public
	      Interests" (supra)

The rule that the interest of the state must )not be put in jeopardy by producing documents which would injure it is in principle quite unconnected with the interests or claims of particular parties in litigation and indeed, it is a matter on which the judge should, if necessary, insist, even though no objection.is taken at all. This would show how remote the rule is from the branch of jurisprudence relating, to discovery of documents or even to privilege(1). So the mere fact that Saxena brought the documents to court in pursuance, to the summons and did not file an affidavit of the Minister or of the head of the department concerned claiming privilege would not mean that the right to object to any evidence derived from an unpublished official record relating to affair of state has been for ever waived. As no affidavit of the Minister or of the head of the department claiming privilege had been filed, it might be that a legitimate inteference could be made that the Minister or the head of the department concerned permitted the production of the document or evidence being given derived from it, if there was no other circumstance. But, Saxena stated that the Blue Book was a secret document and he had not been permitted by the head of the department to produce it. Though that statement was not really an objection to the production of the document which could be taken cognizance of by the court under s. 162 of the Evidence Act, it was an intimation to the Court that the head of the department had not permitted the production of the document in Court or evidence.derived from it being given. Whatever else the statement might indicate, it does not indicate that the head of the department had permitted the production or the disclosure of the document. In other words, from the statement of Saxena that the document was a 'secret' one and that he was not permitted to produce it in court, it is impossible to infer that the Minister or the head of the department bad permitted the document to be produced in court or evidence derived from it being given. Section 123 enjoins upon the court the duty to see that no one is permitted to give any evidence derived from unpublished official records relating to affairs of state unless permitted by the officer at the head of the department. The court, therefore, had a duty, if the Blue Book related to secret affairs of state, not to permit evidence derived from it being given. And, in fact, 'the Court did not allow the production of the document, for, we find a note in the proceedings of the Court on 10-9-1973 stating that the "question about the production of this document in Court shall be decided after argument of the parties on the point is finally (1)see : J.K.S. Simon, "Evidence Excluded by Consideration of State Interest", (1955) Cambridge L Journal, 62.