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The duty of deciding the question is still on the Court under the first paragraph of the section. In case of document relating to affairs of state it may be difficult for the Court to decide the question, yet. it need not be necessarily impossible for the Court to do it. Ordinarily, no difficulty will arise, because heads of department, or public officers are not expected to act capriciously and ordinarily the Court will accept their statement.

* * * If however, the Court finds that an over-zealous officer is capriciously putting forward a claim of privilege the Court will decide, as best as it can, by the means available to it whether the claim is well founded.

In enquiring into the validity of the objection, the Court will of course bear in mind that it should not exercise its powers in such a way as to occasion the mischief, which the law providing for the objection is designed to guard against.

If the objection is a claim of privilege under Section 123, the Court has no power to inspect the document, but may only take other evidence for the purpose of deciding on the objection. If it is a claim of privilege under Section 124, the Court may inspect the document in its discretion. If the Court comes to the conclusion that the evidence proposed to be given will be derived from an unpublished record relating to the affairs of the State it will have to uphold the privilege under Section 123. Then it will be left to the head of the department concerned to give or withhold permission for the giving of the evidence.

Similarly if the Court comes to the conclusion that the communication in question was made to a public officer in official confidence, it will have to uphold the privilege claimed under Section 124 and leave the public officer concerned to decide whether or not to disclose the communication. The criterion for the head of the department and the public officer is whether or not the disclosure would cause injury to public interest. But they are the sole judges of that matter and the Court cannot interfere with their discretion, once H upholds their claim Of privilege either under Section 123 or 124 of the Evidence Act.