MANTUBHAI MEHTA Vs. STATE

JUDGEMENT

(1.) THIS is a reference made by the Presidency Magistrate, 5th Court, Dadar, under Section 432 of the Code of Criminal Procedure, 1898. The question referred to us for opinion arose in connection with a complaint filed before him under Section 323 of the Indian Penal Code, 1860, against certain police-officers for hurt alleged to have been caused to the complainant while he was detained in the Worli Jail on October 5, 1942. The complainant said that he did not know the names of his assailants. On October 27, 1942, the complaint was sent by the Magistrate to the. Superintendent of Police, "F" Division, to ascertain the names of the alleged assailants. The complainant was taken round the Worli Jail and he identified one of his assailants. As regards the others, the jail authorities stated that as many officers had visited the jail at various times on the day in question to quell the disturbance, it was not possible to know their names and to get them identified. After some correspondence with the Superintendent of Police, "F" Division, the Magistrate wrote a letter to the Superintendent of Police, " L " Division, to ascertain the name of the first assailant, and the Superintendent, after consultation with the Deputy Commissioner of Police, sent a certified copy of an entry dated October 5, 1942, in the station-diary kept at Worli Sub-Division. It contained the names of two Indian police-officers who had visited the jail on that day. The complainant, however, said that his assailant was a European or an Anglo-Indian. He applied to the Court to supply the names of the officers who were attached to the Worli prison on October 5, 1942, and to allow him to identify his assailants from among those persons. On that application the learned Magistrate passed an order asking the Superintendent of Police, "L" Division, to hold an identification parade of such officers and to allow the complainant to identify his assailant. THIS order was quashed by the High Court as one going beyond the province of the Court and encroaching upon the rights of the Executive. Thereupon the complainant asked for a witness summons to the Superintendent of Police, " L " Division, to produce the station-diary of "L" Division, Worli Sub-Division (Detachment), containing entries relating to October 5, 1942. On April 30, 1943, the Magistrate sent a letter of request to Inspector Leech to produce the document subject to any privilege which he might claim. It appears that nothing was done by the police till May 14, 1943, which was the next day of hearing. On that date a summons was ordered to be sent to the police-officer and it was sent on May22. After the despatch of the summons a letter was received by the Magistrate from the Commissioner of Police informing him that no station-diary was maintained at Worli, that any books which were maintained there were for security purposes arising out of war provisions, and that he claimed privilege in respect of them as it was not in the public interests that the information should be disclosed. To this the Magistrate sent a reply that as the summons had already been issued it would be advisable for the police-officer to appear in Court and claim privilege from the witness box. Mr. Leech, who had been the Superintendent of Police, " L'' Division, up to that time, died in the meanwhile, and on June 9, 1943, Deputy Inspector Moore was sent to the Court, without the documents which he had been asked to produce, and was instructed by the Commissioner of Police not to produce the document mentioned in the summons or the document known as the Duty Register and to claim privilege in respect thereof. In his evidence Deputy Inspector Moore stated that he had been orally instructed by the Commissioner of Police not to produce the Duty Register. From the record of the case it appears that Deputy Inspector Moore stated that the document-the Duty Register -could not be produced under any circumstances. Thereupon the Magistrate decided to make a reference to this Court. '

(2.) THE learned Magistrate says in his letter of reference that it was necessary for the Court to find out whether the document in question was one which fell under the category of documents mentioned in Section 123 of the Indian Evidence Act, 1872, and that the Commissioner of Police had not stated in clear terms that the document fell under Section 123. THE short point according to him was whether the head of the department or the Court was to decide whether a particular document was an unpublished official record relating to affairs of State.

(3.) ALTHOUGH the actual question referred to us is whether the Court is entitled to inspect a document in respect of which privilege is claimed on the ground of its being an unpublished record relating to affairs of State, the answer to that question requires also an answer to the other question also mentioned in the Magistrate's letter of reference whether it is the Court or the head of the department called upon to produce a document who is to decide whether a particular document is an unpublished record relating to affairs of; State, i.e. whether it is a document in respect of which privilege can properly be claimed.