STATE OF WEST BENGAL Vs. TULSIRAM AGARWALLA

JUDGEMENT

(1.) THIS Rule is directed against Order No. 170 dated july 24, 1976, made by Shri R. B. Goswami, learned Subordinate Judge at purulia. By the impugned order the. learned Subordinate Judge disallowed the claim of privilege put forward by the State of West Bengal in respect of two letters being letters Nos. 815 DEB and 816/deb dated August 30, 1965 addressed by the Superintendent of Police, Enforcement Branch, Purulia, to the deputy Inspector General of Police, enforcement Branch, Calcutta. privilege was claimed on the strength of the provisions of section 123 read with section 162 of the Indian Evidence Act.

(2.) THE facts relevant for the purpose of the present Rule are as follows tulsiram Agarwalla, the opposite party No. 1, filed a suit against the State of West Bengal, the present petitioner, and the other opposite parties in the court of the Subordinate Judge at purulia claiming damages to the extent of Rs 1,00,000/- on the allegation that his detention under the Defence of india Rules was the result of a conspiracy among the opposite parties Nos. , 2,3 and 4 and that those opposite parties were actuated by malice in detaining the Opposite Party No. 1. The following is the text of the said order of detention :

(3.) IN the said suit being M. S. No. ' 4 of 1967 the opposite party No. 1 who was the plaintiff filed a petition praying for an order requiring the defendants therein to produce the two letters referred to above. As already stated, the State of West Bengal claimed, privilege in respect of those 2 documents and in support of that claim of theirs two affidavits were filed, the first of such affidavits was sworn by Shri. Mohini Mohan Kushari, the then Secretary, Home Department, Government of west Bengal, and the other was sworn by Shri Siddhartha - Sarkar Ray, the then Chief Minister of West Bengal. By an order dated April 3, 1973,, Shri G. R. . Bhattacharya, the then learned Subordinate Judge, Purulia, directed that the, said Chief Minister was to be summoned in the form of a request to attend the Court with a view to assisting the court in arriving at a decision on the claim of privilege by submitting himself to the examination by the Court. This order was made by the learned Subordinate Judge as, in his opinion, the examination of the' chief Minister was necessary for the purpose of determining whether the documents in question related to affairs of state. Even though, according to the petitioner, the learned Subordinate Judge acted illegally and with material irregularity in directing the then Chief Minister Of west Bengal to attend the Court for his examination by the Court, an application was filed on behalf of the present petitioner before the learned Subordinate Judge praying for issuing a commission to examine the Chief Minister in calcutta for reasons stated therein. On april 9, 1973, another application was filed on behalf of the State before the learned subordinate Judge praying for re-consideration and/or review of the said order, dated april 3,1973, in the light of the submissions made in that application It was also prayed that if the prayer for review and/or re-consideration were not allowed a date in the first week of May, 1973 might be fixed for examination of the then Chief Minister. The learned Subordinate Judge was of the view that as he had already held that the affidavits were not sufficient for the purpose of deciding the claim of privilege, it was no longer open to him to consider the submissions made in the said application dated april 9, 1973. He, accordingly, required the then Chief Minister to appear in Court either on May 2 or May 3, 1973, in terms of the order made by him on April 3,1973, and wanted that the summons in the form of request be communicated to the Chief minister through the learned Advocate appearing for the State. This was done by the order dated April 12, 1973. On being, aggrieved by the aforesaid orders dated april 3, and April 12, 1973, the present petitioner moved this Court in revision and obtained a Rule being C. R. Case No. 1338 of 1973. While making the Rule absolute and setting aside the impugned orders referred to above this Court gave the following directions :