TILKA Vs. STATE

JUDGEMENT

(1.) The applicants made a certain complaint against one Munshi Singh, a police officer, and on the basis of that complaint Munshi Singh was tried under Section 7 of the Police Act. Certain witnesses were examined in that case and deposed about certain incidents. Subsequently the applicants were challaned for offences punishable under Sections 147 and 323, 325 and 332 read with Section 149, I.P.C. and the same witnesses who had been examined in the proceedings under Section 7 were examined in the criminal trial. The applicants wanted to cross-examine those witnesses on the basis of their previous statements made in the proceedings under Section 7 of the Police Act as it was their case that the witnesses while giving evidence at the trial were stating things, which were directly contradictory to what they had stated in the course of the proceedings under Section 7 of the Police Act. For the purpose of confronting the witnesses with their previous statements and in that way contradicting them, the applicants summoned the record of the proceedings under Section 7 of the Police Act which contained the previous statements of the witnesses. The record was summoned from the Superintendent of Police. He sent the record in a sealed cover to the Magistrate and claimed privilege under Sections 123 and 124 of the Indian Evidence Act The Magistrate conceded the claim of privilege and decided that the applicants were not entitled to have those statements produced. The Applicants went up in revision to the Additional District Magistrate hut he declined to Interfere and agreed with the view which the learned Magistrate had taken. The applicants have, therefore, come up to this Court in revision and contend that the view taken by the two courts below in respect of the claim of privilege made by the Superintendent of Police is incorrect and that they were entitled to have the record of the previous statements of the witnesses to be able to confront the witnesses with those statements during cross-examination. Section 123, Evidence Act provides:--

(2.) An analysis of Section 123 shows that if two circumstances exist, i.e. (1) there is an unpublished official record relating to an affair of the State, and (2) some one is attempting to give evidence derived from that kind of record, the section provides that (3) such evidence shall nor be permitted to be produced except with the permission of the head of the department concerned. It shall be in his discretion to give or withhold the permission.

(3.) The question whether the record in question is an unpublished official record relating to any affair of the State must be decided first before Section 123 can be availed of by the head of the department concerned. That question cannot be decided by the head of the department himself. It is the Court which must decide whether the record in question is an unpublished record and whether it relates to an affair of the State. Under Section 162 of the Evidence Act when the record is required to be produced it must be produced. In order to decide the question the Court may inspect the document unless it relates to an affair of the State. In the latter case it will have to take other evidence relating to the nature of the document. But the privilege of deciding whether the document is an unpublished record of an affair relating to the State is that of the Court, and it is the Court alone which can deal with that matter (vide Public Prosecutor v. Venkata Narassayya, AIR 1957 Andh Pra 486). If the Court, after such evidence as it considers necessary or after seeing the document, comes to the conclusion that the document is not an unpu.bli.shed official record, or that it does not relate to an affair of the State, there is an end of the matter and Section 123 ceases to apply. If, on the other hand, the Court comes to the conclusion that the document in question is of the kind mentioned in Section 123, i.e., it is an unpublished official record relating to any affair of the State, then, whether permission should be given to any one to give evidence on the basis of that document depends on the discretion of the head of the department concerned. It is he alone who can decide in that case whether he would grant permission or refuse to grant it. Whether he exercises that discretion in one way or the other is his own look-out. The Court cannot compel him to exercise that discretion in any particular manner.