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Lakhuram Hariram v. Union Of India

Patna High Court

Aug 12, 1959

Judgment

Subsequent
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Factual and Procedural Background

The petitioner sued in the Munsif, 1st Court, Chapra for recovery of approximately Rs. 2,520 for goods not delivered from a consignment. In the plaint (para 5) the petitioner alleged that notices under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure (CPC) were sent by registered post on 5 June 1950. The opposite party contested the suit, denying service of those notices.

During trial, on 3 November 1954 the petitioner applied for an order directing the opposite party to produce a register recording receipt of notices and letters. The opposite party replied (23 November 1954) that no such register was maintained. On 6 January 1956 the petitioner further applied for production of a departmental file No. NCS/338.CPR of 1951, said to be in the office of the Traffic Manager, Gorakhpur (Chief Commercial Superintendent, North Eastern Railway).

A summons was issued to the Chief Commercial Superintendent to produce the file and the register showing receipt of notices for June 1950. On 16 March 1956 a petition (filed on behalf of the opposite party) stated the file could not be produced because it contained privileged communications under Section 124 of the Indian Evidence Act. Subsequently, an affidavit by the Senior Law Inspector averred that privilege was claimed under Section 123 of the Indian Evidence Act and that the register could not be traced despite diligent search. The petitioner replied (rejoinder) that the file was concerned with commercial transactions and not unpublished official records relating to affairs of State.

Legal Issues Presented

Whether the trial Court was required to inspect the departmental file (or other documents) to decide a claim of privilege asserted under Section 123 of the Indian Evidence Act.
Whether Order XI, Rule 19(2) of the CPC (which permits court inspection of documents when privilege is claimed) can be applied so as to override or negate the operation of Section 123 of the Indian Evidence Act.

Arguments of the Parties

Petitioner's Arguments

The petitioner alleged that statutory notices (Section 77 Indian Railways Act; Section 80 CPC) were sent to the opposite party by registered post on 5 June 1950.
Petitioner sought production of a register showing receipt of notices and of departmental file No. NCS/338.CPR of 1951, contending those documents would prove service.
On claim of privilege, the petitioner argued that the trial Court should itself inspect the documents to decide whether privilege properly attached.
In rejoinder the petitioner contended that the file related to commercial transactions and was not an unpublished official record relating to affairs of State (i.e., not privileged).

Opposite Party's Arguments

The opposite party contested service of the statutory notices.
Initially stated that no register was maintained; later the register could not be traced despite search.
The opposite party (via petition/affidavit through departmental officers) claimed that the departmental file contained privileged communications and invoked privilege under the Indian Evidence Act—initially claimed under Section 124 in a petition and later asserted under Section 123 in affidavit filed by a Senior Law Inspector/Chief Commercial Superintendent.
On summons, the departmental representative refused production of the file on the ground of claimed privilege and asserted that the file related to affairs of State as contemplated by Section 123.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Governor General in Council v. H. Peer Mohd. Khuda Bux, AIR 1950 EP 228	Majority Full Bench view: decision to claim privilege must be taken by the head of department; Court is generally not entitled to inspect documents referring to affairs of State to decide privilege.	The Court agreed with the majority view and applied it to hold that the trial Court was correct in accepting the departmental affidavit and not inspecting the file; the head of department must be the decision-maker on privilege.
Duncan v. Cammell, Laird and Co. Ltd., 1942 AC 624 (Lord Simon)	Principle that the political head/minister (or effective permanent head) should see and consider documents before claiming public-interest privilege; minister's objection may be conveyed by a subordinate with a signed certificate but the court may require minister's personal attendance if not satisfied.	The Court cited Lord Simon's exposition to support the procedural requirement that the head of the department must have considered the document and may delegate for convenience but remains subject to the court's dissatisfaction and requirement of personal attendance or affidavit.
In re Mantubhai Mehta, AIR 1945 Bom 122	When an officer is summoned to produce an official document, he must raise objection in Court; the Court must decide validity of the objection without inspecting documents that refer to matters of State and may decide by examining the producing officer or other evidence.	The Court relied on this authority to reinforce that the Court's enquiry into claimed privilege is limited and that non-inspection is permissible; the trial Court's satisfaction on affidavit sufficed here.

Court's Reasoning and Analysis

The Court began by stating and reproducing the text of Section 123 of the Indian Evidence Act:

“123. 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.”

The Court also referenced Section 162 of the Indian Evidence Act, which contemplates that a witness summoned to produce a document shall bring it to Court and that the validity of objections to production shall be decided by the Court; Section 162 also permits the Court, if it sees fit, to inspect the document unless it refers to matters of State.

The petitioner relied on Order XI, Rule 19(2) CPC, which authorizes a Court to inspect a document on an application for inspection when privilege is claimed. The Court held that Order XI, Rule 19(2) cannot override Section 123 of the Indian Evidence Act because Section 123 is a special provision governing unpublished official records relating to affairs of State. The Court concluded that sub-rule (2) of Rule 19 of Order XI does not pro tanto repeal Section 123 despite the Code of Civil Procedure being a later enactment.

The Court articulated the legal position derived from Section 123 and the authorities cited:

The head of the department must first examine the document and decide whether privilege should be claimed.
The head may appear in person before the Court to raise the objection, or may direct a subordinate to do so with a certificate signed by him stating he has examined the document.
Even when a subordinate appears with a certificate, the head is not absolved from the obligation to appear and satisfy the Court of the validity of the claim; the Court may require an affidavit or oath and may put further questions to the head.
Importantly, the Court is not entitled to inspect the document nor to ask questions designed to elicit its contents when the document refers to affairs of State; the scope of the Court's enquiry is therefore limited.

The Court found these principles consistent with the majority Full Bench decision in Governor General in Council v. H. Peer Mohd. Khuda Bux, with Lord Simon's statement in Duncan v. Cammell, Laird and Co. Ltd., and with the Bombay High Court's view in In re Mantubhai Mehta. Applying these principles to the present facts, the trial Court was satisfied from the affidavit of the Chief Commercial Superintendent that the document related to affairs of State under Section 123. While the trial Court could have sought further evidence or examined the Chief Commercial Superintendent in person, the scope of that enquiry lay within the trial Court's discretion. Given that the trial Court accepted the affidavit, the appellate court found no error of law in the lower Court's refusal to inspect the file and in allowing the claim of privilege.

Holding and Implications

Holding: The application is DISMISSED. The appellate Court upheld the trial Court's allowance of the claim of privilege under Section 123 of the Indian Evidence Act and found no error of law in the trial Court's refusal to inspect the departmental file.

Implications and immediate consequences based on the opinion:

The trial Court's decision that the departmental file was privileged under Section 123 was affirmed.
The Court held that Order XI, Rule 19(2) CPC does not override Section 123 of the Indian Evidence Act; hence the power of court inspection under that sub-rule is constrained where Section 123 applies.
Practical procedural consequence: the head of the department must examine the document and claim privilege; the Court's inquiry into such a claim is limited and may be satisfied by affidavit or other evidence without inspection.
Direct outcome in this matter: dismissal of the petitioner's application with costs; hearing fee recorded as Rs. 100.

No statement in the provided opinion indicates that a new legal precedent was intended to be established; the Court relied upon and applied existing authorities and principles.

Show all summary ...

1. In this case the petitioner has brought a money suit in the Court of the Munsif, 1st Court, Chapra, against the opposite party for realising a sum of Rs. 2520 and odd, being the value of goods which were not delivered out of a particular consignment. In paragraph 5 of the plaint the petitioner alleged that notices under Section 77 of the Indian Railways Act and Section 80 of the CPC had been sent to the opposite party per registered post on the 5th of June, 1950. The suit was contested by the opposite party on the ground that notices under Section 77 of the Indian Railways Act and Section 80 of the CPC had not been served.

2. During the trial of the suit the petitioner made an application on the 3rd of November, 1954, praying that the opposite party should be called upon to produce the register in which there were entries regarding receipt of notice and letters. The opposite party filed a rejoinder on the 23rd November, 1954, that no such register was maintained. Later on, on the 6th of Januaiy 1956, the petitioner made an application to the trial Court to the effect that they had come to know that a file No. NCS/338.CPR of 1951 was maintained in the office of the Traffic Manager Gorakhpur, now called the Chief Commercial Superintendent of the North Eastern Railway with regard to his case and the petitioner requested that the opposite party should be called upon to produce the aforesaid file.

3. Summons was issued by the Court on the Chief Commercial Superintendent of the North Eastern Railway at Gorakhpur calling upon him to produce the file NCS/338.CPR of 1951 and also the register of notices kept in the General Managers office, showing receipt of notices for the month of June, 1950. On the 16th of March, 1956, a petition was filed in the trial Court by Sri Suraj Prasad Upadhya on behalf of the opposite party in obedience to the summons sent to the Chief Commercial Superintendent of the North Eastern Railway. It was stated in that petition that the file in question could not be produced in Court because it contained privileged communications under Section 124 of the Indian Evidence Act.

4. On the 27th April, 1958, there was an affidavit filed by the Senior law Inspector Sri R.S Prasad to the effect that privilege was claimed by the Chief Commercial Superintendent under Section 123 of the Indian evidence Act. It was also stated in the affidavit that the register could not be traced out though it had been diligently searched for. A rejoinder was filed by the petitioner on 27-4-1956, contending that the file in question related to commercial transactions and was not in the nature of unpublished official records relating to affairs of State.

5. It was submitted by the petitioner that the Court should itself inspect the documents and decide the question of privilege. The trial Court held it was satisfied from the affidavit of the Chief Commercial Superintendent that privilege was properly claimed under Section 123 of the Indian evidence Act and it was not permissible for the Court to look into the file on the question of privilege. Accordingly, the trial Court allowed the claim of the opposite party that the file in question was a privileged document within the meaning of Section 123 of the Indian evidence Act.

6. In support of this application the point taken on behalf of the petitioner is that the trial Court should have itself looked into the file before deciding the claim of privilege under Section 123 of the Indian evidence Act. We do not think that this argument is correct. Section 123 of the Indian evidence Act is in the following terms:

Section 162 is also relevant in this connection and is reproduced below:

“162. A witness summoned to produce a document shall if it is in his possession or power, bring it to Court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the Court.

The Court if it sees fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility. If for such a purpose it is necessary to cause any document to be trans lated 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 S. 166 of the Indian Penal Code.”

Reliance was however placed by learned Counsel on behalf of the petitioner on Order 11, Rule 19(2) of the CPC. It reads as follows:

“19(1) *****.

(2) Where on an application for an order for inspection privilege is claimed for any document, it shall be lawful for the Court to inspect the document for the purpose of deciding as to the validity of the claim of privilege.”

But in our opinion, Order 11, Rule 19 of the CPC cannot override the provisions of Section 123 of the Indian evidence Act which is a special provision of law. The result therefore, is that sub-rule (2) of Rule 19 of Order 11, has not the effect of repealing pro tanto the provisions of Section 123 of the Indian evidence Act though the Code of Civil Procedure is a later enactment. The legal position, therefore, is as follows: The head of the department must in the first place examine the document and consider whether privilege should or should not be claimed in respect of the document. He may then appear in person before the Court to raise the objection or he may direct one of his subordinates to do so on his behalf with a certificate signed by him and stating that he has examined the document.

7. But where the latter course is followed, the, head of the department will not be absolved from the obligation of appearing in person and satisfying the Court that the objection taken by him is valid. The Court may require him to give an affidavit or make a statement on oath and may put any further questions to him for satisfying itself that the privilege has been validly claimed. But it is important to say that the Court is not entitled to inspect the document, nor put such questions to the head of the department or any other witness, either directly or indirectly to reveal its contents. The scope of the enquiry that the Court can hold is, therefore, limited. This view is in accordance with the majority view of the Full Bench decision in Governor General in Council v. H. Peer Mohd. Khuda Bux, AIR 1950 EP 228 with which we respectfully agree. The same view has been enunciated by Lord Simon in Duncan v. Cammell, Laird and Co. Ltd., 1942 AC 624 as follows:

“The essential matter is that the decision to object should be taken by the Minister who is the political head of the department and that he should have seen and considered the contents of the document and himself have formed the view that on grounds of public interest they ought not to be produced, either because of their actual contents or because of the class of documents, e.g departmental minutes to which they belong. Instances may arise where it is not convenient or practicable for the political minister to act (e.g) he may be out of reach, or ill or the department may be one where the effective head is a permanent official and in such cases it would be reasonable for the objection to be taken as it has often been taken in the past by the permanent head. If the question arises before trial, the objection would ordinarily be taken by affidavits and a good example is provided by the affidavit of the First Lord of the admiralty in the present case. If the question arises on subpoena at the hearing it is not uncommon in modern practice for the minister's objection to be conveyed to the court, at any rate in the first instance, by an official of the department who produces a certificate which the minister has signed stating what is necessary. I see no harm in that procedure, provided it is understood that this is only for convenience and that if the court is not satisfied by this method, it can request the minister's personal attendance.”

A similar view has been expressed by the Bombay High Court in In re Mantubhai Mehta AIR 1945 Bom 122 and Wadia, J. observed in that case as follows:

“The question therefore with regard to an official document is that the officer summoned to produce it is bound to produce it in Court. He must raise the objection in Court and the question whether that objection is well founded is one for the Court to decide. But for this purpose the Court is not entitled to inspect the document if it refers to matters of State. It must decide the question without such inspection by examining the office producing it or otherwise.”

8. In our opinion, the principle is correctly expressed in all these authorities. In the present case, therefore, it is manifest that the contention of learned Counsel for the petitioner that the Court should have inspected the document to decide the question of privilege is unwarranted. It appears from the facts in this case that the lower Court was satisfied from the affidavit sworn by the Chief Commercial Superintendent that the document in question related to affairs of State as contemplated by Section 123 of the Indian evidence Act. It was of course open to the lower Court to have taken other evidence on the point or even to have examined the Chief Commercial Superintendent in person. But the actual scope of the enquiry in the particular case is a matter of discretion with the trial Court. In the present case it is apparent that the trial Court was satisfied with the affidavit sworn by the Chief Commercial Superintendent and allowed the claim of privilege under Section 123 of the Indian evidence Act. In our opinion there has been no error of law committed by the lower Court. There is no merit in this application. We accordingly dismiss this application with costs.

9. Hearing fee Rs. 100/-.

AD/V.S.B

10. Application dismissed.