R M D CHAMARBAGHWALLA Vs. Y R PARPIA

JUDGEMENT

(1.) I have heard the parties at length on the question of the admissibility of this document. The objection is really sought to be sustained by the Advocate-General on the construction of Section 123, Evidence Act. Before, however, I consider the provisions of that section it is necessary for me to define the scope of the enquiry before me as it has been laid down in the judgment of the appeal Court. The learned Chief Justice in the course of his judgment has observed in Parpia v. Chajmarbagwalla, 50 Bom. L. R. 728 at p. 743 : (A. I. R. (36) 1949 Bom. 109):

(2.) Section 123, Evidence Act is as under : "No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or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." There are two things which are involved in this section: one, that the document should be an unpublished official record relating to any affairs of State; and (2) that the officer at the head of the department concerned may give or withhold the permission for giving the evidence derived therefrom.

(3.) In the various authorities which have been cited before me, the considerations which should weigh with the Court in deciding objections taken under Section 123 of the Act have been mixed up with the considerations which should weigh with the Court in deciding objections under Section 124 of the Act, and both these classes of cases have been mixed up. The objections under Section 123 of the Act and Section 124 of the Act have been treated as on a par with each other, and it is therefore that we find various dicta of the learned Judges who have decided these cases laying down principles with regard to both the sets of circumstances without discriminating one from the other. In my humble opinion, however, the matter has got to be considered only with reference to Section 123 of the Act, divorced from any considerations which may be germane to or relevant under Section 121 of the Act; and I shall try in the later part of this judgment of mine to keep these two sections apart one from the other.