STATE OF KERALA Vs. T P NANDAKUMAR

JUDGEMENT

(1.) Whether an order rejecting the privilege claimed by the State in producing a report submitted by the DIG of Police, Ernakulam to the Government in respect of illegal trade in kidney is revisable under Section 397 of the Code Whether the State is entitled to the privilege claimed in respect of the report submitted by the DIG of Police . Whether the report relates to the affairs of the State These are the important questions to be decided in the revision.

(2.) Second respondent a private hospital at Kozhikode represented by its Managing Partner filed a complaint under Sections 499 and 500 read with Section 34 of IPC against the petitioner and others which was taken cognizance of by the learned Magistrate. Accused pleaded not guilty and evidence on the side of the second respondent was recorded. Part of the defence evidence was also recorded. At that stage, first respondent filed a petition to summon and produce a report submitted by the DIG of Police, Ernakulam in the enquiry conducted by him regarding the kidney trade racket allegedly revealing the persons and the hospitals involved. The complaint itself was originated on publication of a report in the newspaper published by the first respondent alleging the involvement of second respondent hospital in the kidney trade racket. The report thought to be summoned was to justify the report published by the first respondent as the truth. According to first respondent, involvement of second respondent hospital is clear from the report submitted by the DIG of Police after proper investigation. As directed by the learned Magistrate under Secretary to the Government of Kerala produced the report in a sealed cover and privilege was claimed under Sections 123 and 124 of Evidence Act contending that the report shall not be made public as it is a privileged document as it pertains to unpublished unofficial records and relate to the affairs of the State. Learned Magistrate after hearing the counsel for the parties and the Assistant Public Prosecutor appearing for the State, as per order dated 12-4-2005 allowed the petition and directed to open the sealed cover containing the report and made it available to the parties to the case, which is being challenged by the State in this revision.

(3.) It was contended by the State in the revision that the finding of the Magistrate that the report will not affect public interest or security of the State or functioning of any public service is erroneous and the very procedure adopted by the learned Magistrate is illegal. It was contended that when a privilege is claimed in respect of a report stating that the report relates to the affairs of the State, the Magistrate before opening the sealed cover should have decided whether the privilege claimed is sustainable or not and as the sealed cover was opened and report was perused by the Magistrate before passing the order, the order is illegal and unsustainable. It was also contended that without deciding the question of relevancy of the report to the question involved in the case summons should not have been issued and in the impugned order also it was not found that the report is relevant and necessary for the purpose of resolving the disputes involved in the case. It was also the contention that the procedure and methodology adopted by Investigating Officer on the basis of which he submitted the report are unverified facts and if the report is published it would unnecessarily point out suspicion on the persons allegedly involved and in such circumstances the report should have been kept secret and confidential and the privilege should have been granted.