1. The question here is an interesting and important one relating to privilege in connexion with documents of State. The plaintiff sues the defendant on a promissory note dated 19th March 1933. The defence is that it was executed for an illegal consideration and so is void. The defendant's case is that he was being prosecuted for a criminal offence and had called a certain witness in his defence and in order to induce the man to depose in his favour had executed this note as a bribe. At least the defence comes to that, although the word bribe is not actually used. His learned counsel explained here that it would have been too crude to execute a note in favour of the witness directly especially as he was a Government official, so the plaintiff's name was inserted, but the plaintiff was a mere benamidar for the other person who Page: 359was the real payee. The defendant denies that he received any consideration cash and also states that the plaintiff was not in a position to advance the money. In order to establish this he called upon the plaintiff to produce his accounts. The plaintiff replied that he had none relating to the period in suit. About the time that this money is said to have been advanced a police investigation was proceeding in connexion with another offence — a cheating case — entirely unconnected with the one for which the defendant was being prosecuted. During the course of the investigation the police had inspected the plaintiff's account-books and made copies of them. In order to disprove the plaintiff's story that he had no account-books relating to that period and in order to establish his own case that the plaintiff did not lend him any money and that the plaintiff was not in a position to advance the loan in suit the defendant called upon the police to produce these copies which they had made.
2. The Circle Inspector of Police, Faiz Husain, who had investigated the cheating case was called as a witness and in his deposition as D.W 6 he admitted that he had inspected the plaintiff's accounts and admitted that his Sub-Inspector had made copies of the relevant entries which he says he checked. It is these copies which the defendant wants. A number of summonses were issued in this connexion, one being to the Station, House Officer, who is said to be in possession of these copies. He was called upon to produce: (1) The reports made by Baktawarmal from July to October 1934; (2) the case diary; (3) the report of the Station House Officer, Gondia, and (4) the copy of the account-book of the plaintiff Pandit Ramnath. This summons was re-burned with the following endorsement:
Returned……with the intimation that according to the Police Manual, para. 694 a copy of the F.I Report only could be given to the defendant. The other papers if required by the defendant he should apply to the I.G of Police.
3. No attempt was made to approach the Inspector-General of Police for permission but further summonses were issued to various police officers at Gondia. At one stage the District Superintendent of Police complained that the information given in the summons was vague and confusing and that it would require a great deal of unnecessary search to unearth a complaint so vaguely described and so he asked for further particulars. No notice was taken of this request and instead the Circle Inspector, Faiz Husain was summoned to produce the documents. On this the following reply was received from the Inspector-General's office: “As the documents are privileged I regret they cannot be produced.” It is signed—“Sheo Shankar Prasad, Superintendent for I.G of Police, C.P” On receipt of this letter the lower Court held that as the Inspector General of Police had written to say that the documents are privileged Faiz Husain need not be summoned again and that the defendant would have to close his case. It is this order which the defendant seeks to revise. In this Court the defendant's learned counsel confined himself to the copies of the plaintiff's account-books made by the police and said that he would give up his right to have the other documents, for which he had asked, produced. But so far as the copies of the accounts are concerned he argued that by no conceivable stretch of imagination can they be regarded as documents of State or as being in any other way privileged. I desire to make this clear at the outset. I am being asked to exercise revisional jurisdiction under Section 115 of the CPC in a purely interlocutory matter about the admission of a certain piece of evidence. I am clear that in the ordinary way I would have no jurisdiction to do so, but as Niyogi, A.J.C interfered in a similar matter in AIR 1936 Nag 25 (1936) 23 AIR Nag 25 , 161 IC 668 and in view of its general importance, I thought it right to hear both sides as well as the Crown. All three appeared and have thrashed the matter out at length. No objection has been taken to my competency to entertain the petition and so it is evident that everybody concerned wants the question to be settled at this stage in the case. In civil matters jurisdiction can be conferred by consent and so for that reason and because the point has been so fully argued I now proceed to decide the question, but make it plain that this must not be regarded as a precedent for interference in purely interlocutory matters of procedure which do not affect jurisdiction and which do not inflict irreparable injury.
4. The Evidence Act is anything but clear on this point. S. 123 prohibits anybody from giving evidence derived from unpublished official records relating to any affairs of State except with the permission of the Page: 360officer at the head of the department concerned, and he is entitled to give or to withhold such permission as he thinks fit. This raises the following difficulties at once. First of all the section does not refer directly to documentary evidence. The prohibition is in respect of a living person whose lips are sealed by this section. Of course a document is not evidence in itself except in certain circumstances. It has to be proved by a witness before it can be admitted and it may be that the prohibition is effective to prevent its proof and therefore its production in evidence, but even so the prohibition obtains only in respect of an unpublished official record relating to any affair of State. Who is to decide whether the document in question is of that nature? S. 123 does not assist us there. The clause relating to the head of the department concerned does not in my opinion give that official the right to determine whether the document is an unpublished official record relating to affairs of State. It merely gives him the right to give or to withhold permission in his absolute discretion when the document is of that kind. But the question is still at large as to who is to decide about the nature of the document.
5. Section 124 is also not easy to construe. It states that no public officer shall be compelled to disclose a communication made to him in official confidence when he considers that the public interests would suffer by the disclosure. It is doubtful whether this can be taken to cover a copy made of a man's account-book in the course of a police investigation and in any case it raises the same difficulty as before. Who is to decide whether the matter in question was a communication made to the public officer in official confidence, the public officer or the Court? The difficulty is doubly felt when we find, as here, that the public officer in question has deposed freely about the contents of the document or at any rate about parts of it. It would, in my opinion, be dangerous to hold that a witness may speak freely about the contents of a document and then evade the wholesome rule which states that a document must be read and construed as a whole by claiming official privilege under S. 124; and yet that is the inevitable result if the witness is to be the sole judge. Then comes S. 162 which deals with the exact situation we are now considering, namely when a witness is summoned to produce a document. Para. 1 states that the document must be produced “not withstanding any objection which there may be to its production or to its admissibility.”
6. Then comes para. 2:
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.
7. It is clear from this that the Court may not inspect the document if it refers to matters of State, but it is not clear how the Court is to determine whether the document falls within that category or not. An examination of these three sections reveals that two points of view are possible. The first is that the head of the department concerned takes the necessary objection and that his decision is final. He is entitled to decide both whether the document is a document of State as well as whether the evidence derived from it should be given or not. This is the view in 48 Cal 304 (1921) 8 AIR Cal 282 , 63 IC 467 , 48 Cal 304 , 25 CWN 150 at page 318. The opposite point of view is to be found in 44 All 360 (1922) 9 AIR All 37 , 66 IC 171 , 44 All 360 , 20 ALJ 140 at p. 365 and there is thus much to be said in its favour. It would be meaningless to compel a witness to produce a document in Court if his decision or that of the head of the department was intended to be final. Also the position of the last clause in para. 2 of S. 162 appears to indicate that the Court is entitled to take other evidence to determine whether the document is admissible or not. If that had not been the intention then the paragraph would have run thus: “The Court, if it sees fit, may inspect the document or take other evidence to determine on its admissibility, unless it refers to-matters of State.”
8. The only point of inserting the clause “unless it refers to matters of State” in the middle of the paragraph immediately after the words “may inspect the document” seems to be to indicate that the Court may not inspect a document in respect of which such a privilege is claimed until it has had an opportunity of determining its admissibility and for that purpose it may, if it thinks fit, take other evidence. The words “take other evidence” must mean evidence other than that of the document produced and the word “its” must refer to the document produced. Therefore since this clause is not qualified by any other words in that paragraph, it would appear to mean that the Court may take other evidence Page: 361to determine the admissibility of a document in respect of which this particular kind of privilege is claimed and that would be consistent with the rule which compels its actual production in Court. However since the Act itself is not clear on the point it is legitimate to refer to the English law on which the Act is based.
9. As regards that, one thing is clear at the outset. There is a wide difference between cases in which the State itself is a party and those in which it is not. In the former event the State is bound by the ordinary rules of procedure which bind any other person who sues or is sued in a Civil Court. If the State chooses to engage in commercial activities or render itself civilly liable in other ways, it cannot evade its obligations and liabilities by claiming privilege in respect of documents relating to matters in controversy in the suit except to the extent explained by the Privy Council in (1931) AC 704. (1931) AC 704 , 100 LJ PC 183 , 145 LT 408 , 76 SJ 458 , 47 TLR 454 The manner in which such privilege is claimed is also different. The State when a party is bound by all the usual rules about the discovery and production of documents. If it claims privilege in respect of any particular document it must claim it upon affidavit in the usual way; also in such a case the Court may rightly insist upon the sworn statement of the head of the department concerned or even of a responsible minister. When the State is a party it is interested in the litigation and so, before documents otherwise relevant can be excluded the Court must be satisfied that the mind of a responsible officer of Government has been brought to bear upon the question whether it is expedient in the public interest to give or to with, hold the information asked for; and also that he has made his decision solemnly and with a due sense of responsibility and not merely in order to avoid an inconvenient disclosure which may tell against his own side in the litigation or as a matter of mere departmental routine.
10. When however the State is not a party the position is different. It is no longer interested. It is no longer bound by the rules of procedure which govern the parties to a suit and so it would then ordinarily be enough for the Court to accept the unsworn statement of the head of the department, or when Section 124 of the Evidence Act, applies, of the public officer concerned. These two aspects are considered at pages 717 and 718 of the Privy Council ruling just cited. As to which of these two courses should be adopted in any particular case is a matter which is purely discretionary with the Court. But this still leaves the main difficulty unsolved. Who is to decide whether a document is one of State or not? From the observations made by their Lordships in the above case it seems that the decision lies with the Court. Of course that was a case in which the State was a party and it is true there is a wide difference but the observations of their Lordships on this point seem to be of general application. Their Lordships came to the conclusion after an examination of the authorities that:
The Court has in these cases always had in reserve the power to enquire into the nature of the document for which protection is sought and to require some indication of the nature of the-injury to the State which would follow its production.
11. They state that:
The existence of such a power is in no way out of harmony with the reason for the privilege provided that its exercise be carefully guarded so as not to occasion to the State the mischief which the privilege where it exists is designed to guard against.
12. They also state that:
The existence of the power…. is confirmed not only by judicial pronouncement, but by widespread practice, and may it not be added, by the reason of the thing?
13. They add that the Court is entitled in any particular case to prescribe the manner in which the claim of privilege is to be made if it is to be allowed. Some of the cases of which their Lordships approved, as for example, (1900) 1 Ch 347 In re Joseph Hargreaves Ltd., (1900) 1 Ch 347 , 69 LJ Ch 183 , 82 LT 132 , 7 Manson 354 , 48 WR 241 , 4 Tax Cas 173 , 16 TLR 155 and (1888) 21 QBD 509 (1888) 21 QBD 509 , 57 LJ QB 530 , 59 LT 323 , 53 JP 52 were not cases in which the State was a party. On reading this case law in conjunction with the provisions of the Evidence Act, I am of opinion that the following rules apply in India when the State is not a party:
(1) That all documents called for must actually be produced in Court, provided of course they are in the possession and power of the person who is summoned to producer them.
(2) That in the case of State documents the privilege should ordinarily be claimed by the witness who is summoned to produce them, though the Court may and Page: 362should raise the objection of its own motion if it is satisfied either from the nature of the document called for or otherwise, as for example from a letter written by a responsible public officer in response to the summons to produce, that it is an unpublished official record relating to an affair of State or a communication made to a public officer in official confidence.
(3) That when objection is taken the Court is precluded from inspecting the document but is entitled, if it thinks fit, (that is to say it is not bound) to examine other evidence to determine its nature and character though not its contents.
(4) Ordinarily it will be enough if the head of the department concerned certifies not necessarily in a sworn statement, but in a letter or other document produced and proved by the witness concerned or in some other way (e.g under Section 57 of the Evidence Act where the signatures of certain public officers need not be proved) that the document is an unpublished official record relating to an affair of State or a communication made to a public officer in official confidence.
(5) But the Court is not bound to accept that as final and may require further evidence to satisfy itself that the document in question is really of that nature bearing in mind however the observation of the. Judicial Committee in (1931) AC 704 at page 725 that:
The Judge in giving his decision… will be careful to safeguard the interests of the State, and will not in any case of doubt resolve the doubt against the State without further inquiry from the Minister,
or here the head of the department.
(6) If after all this the Court decides that the document is not privileged it must be tendered in evidence, although in view of the possible disastrous public consequences which may flow from disclosure it would be right and proper to allow the State a reasonable time for taking such steps as it thinks fit to have the matter set right.
(7) On the other hand if the Court considers that the document is a State document of the nature described above, then it cannot be admitted in evidence unless the party who seeks its production produces the permission of the head of the department or the public officer concerned. The burden is on the party calling for the document and the decision of the head of the department or the public officer concerned to give or to withhold consent is in that event final.
14. Applying these rules to the present case the first question which I have to determine is whether the documents called for are unpublished official records relating to an affair of State or are communications made to a public officer in official confidence. As I have said four sets of documents were called for. The first three are undoubtedly privileged. It does not require a witness to describe their nature and so, as I have said, the Court can and indeed must of its own motion refuse to allow their production unless the defendant who called for them produces the necessary permission. This has been recognized here and counsel has very rightly confined himself to the fourth set, namely the copies of the account books. The Circle Inspector, Faiz Hussain tells us as D.W 6 that his Sub-Inspector made copies of certain entries in the plaintiff's accounts at the plaintiff's shop. The plaintiff's account books are certainly not State documents and so prima facie it is impossible to see how copies of them can assume this important shape simply because they were written by a Sub-Inspector in the course of a police investigation. In 32 Mad 62 (1909) 32 Mad 62 , 1 IC 705 , 19 MLJ 263 at p. 65 it was held that the returns made to an Income-tax Officer are not documents of State. The position is much the same here. D.W 6, Faiz Hussain tells us that these copies were made at the plaintiff's shop, so they were probably not copied into the case diary direct, but even if they were, it would make no difference. The case diary as such is of course privileged but not necessarily every entry in it. Neither the police nor any other person can evade the normal rules of disclosure by the simple expedient of entering matter for which no privilege can be claimed into an otherwise privileged document: see, 6 Rang 672 (1929) 16 AIR Rang 87 , 115 IC 899 , 30 Cr LJ 538 , 6 Rang 672 at p. 673 and ILR 1937 Nag 178 (1936) 23 AIR Nag 249 , 1936 Cr C 1040 , 170 IC 638 , 38 Cr LJ 936 , ILR 1937 Nag 178 at p. 179. The correct procedure in such a case is to seal up the rest of the document so that it cannot be inspected and to disclose only those portions which are not privileged: see Mulla's Code of Civil Procedure, 10th Edn., p. 622, and 20 Cal 587. (1893) 20 Cal 587. Page: 363Also it is not necessary that the document should be left on record so to afford an unauthorized person an opportunity of tampering with it or seeing it. The witness who produces it can furnish copies of the entries concerned in the same way as copies of entries in account books dealt with. As their Lordships observed in Robinson's case (1931) AC 704 , 100 LJ PC 183 , 145 LT 408 , 76 SJ 458 , 47 TLR 454:
The privilege is a narrow one most sparingly to be exercised…… the principle of the rale is concern for the public interest and the rule will accordingly be applied no farther than the attainment of that object requires.
15. One of the earlier summonses was returned with the remark that only a copy of the first information report could be supplied and my attention was drawn during the argument to Section 162 of the CPC. But that section excludes the statements mentioned in it only during the inquiry or trial in respect of any offence under investigation at the time when the statement was made. It does not apply to every proceeding whether civil or criminal. Of course it may be that the matter is privileged on other grounds but not because of this section. As regards the objection that the summons was vague in that the documents were not described with sufficient particularity to enable them to be recognized, it might have been a valid objection if it had not been for the fact that the Circle Inspector, Faiz Hussain, seems to have had no difficulty in remembering the incident and the case referred to. He actually consulted his own notes about the proceedings in the course of his evidence and gave exact particulars as to sums and dates. In the circumstances it is difficult to resist the conclusion that the excuse was not a genuine one and that the police were either playing for time or making a routine exeuse, although why they should want to do that is not easy to understand. I allow the revision. A fresh summons will now issue for the production of the copies of the plaintiff's accounts which D.W 6 states that his Sub-Inspector made in the course of the investigation about which he speaks. Prima facie these copies whether entered in the case diary direct or made on separate sheets of paper are not privileged documents. But as this matter has not really been determined it will be open to the witness or the head of the department concerned (but not the defendant, for the privilege is not his) to satisfy the lower Court that the documents really are unpublished official records relating to an affair of State or that they are communications made to a public officer in official confidence for reasons which have not appeared hitherto and which have not been dealt with by me. If they succeed in that then the documents cannot be used in evidence unless the defendant produces the sanction of the Inspector-General of Police. If not, the documents must be disclosed. In view of the fact that the objection throughout has been by or on behalf of the Crown and not by the parties concerned and since my jurisdiction to act in this matter has really been conferred by consent I will make no order as to costs.
B.D/R.K
16. Application allowed.