S.B. CHOUDHURY Vs. I.P. CHANGKAKATI

JUDGEMENT

(1.) THIS is a revision Under Section 439 of the Criminal Procedure Code on behalf of the petitioners who are accused in a trial pending before the Sessions Judge, Lower Assam Division, Gauhati. The case was started against' the petitioners on a complaint had by the complainant opposite party Under Section 198 B of the Cr.PC on the allegation that the petitioners committed the offence of defamation against Sri Moinul Haque Choudbury, Minister to the Government of Assam in charge of Food, Agriculture, Veterinary, Co operative etc. The petitioners were summoned by the Sessions Judge Under Sections 500 and 501, Indian Penal Code. Charges were framed against the petitioner on 18th July 1959 after examining a number of witnesses. The petitioners are alleged to have published Ext. 2, a sbooklet under the captions 'The Press and Sri Moinul Haque Choudhury' and Ext. 28(1), the editorial under the caption 'To our M. L. As.' published in the 'Shillong Times' dated 3rd August 1958 in respect of the conduct of the Minister in discharge of public functions. These writings were intended to harm the refutation of tine said Minister. The petitioners pleaded not guilty to the charge. On the 22nd July 1959 the petitioners filed an application before the Sessions Judge praying that certain documents mentioned in the said petition be called for as they were necessary to establish the anti State activities of the Minister concerned. The Sessions Judge ordered the production of the documents but a petition was ?led on 25th August 1959 by the State of Assam through the Advocate for the complainant for the modification of the earlier order passed by the Sessions Judge calling for the documents mentioned in the petition on the ground that some of the documents did not relate to the subject matter of the charges framed and some were public documents in respect of which privilege was claimed. Later m affidavit was filed by the Chief Secretary to the Government of Assam stating that the two documents, namely, (1) Dossier and personal Folder of Sri M. H. Choudhury maintained by the Special Superintendent of Police, C. 1. D,, Shillong and/or by the Gov emment of Assam,

(2.) POLICE or Intelligence Branch reports leadtog to the issue of detention order against Sri M. H. Choudhury in 1950, under the P. D. Act, were unpublished official records relating to the affairs of the State and that their disclosure will be prejudicial to public interest for the reasons mentioned in the affidavit. These documents were covered by items Nos. 9 and 74 mentioned in the petition filed by the petitioners. The privilege claimed by the State was objected to by the petitioners. The Sessions Judge by his order dated 9th November 1959 accepted the contention of the State and it is against the aforesaid order of the Sessions Judge that the present petition in revision has been filed before this Court. 2. Three points have been urged by the counsel for the petitioners - firstly that the affidavit filed by the Chief Secretary should not have been taken into consideration as it does not conform to the rules of the court, secondly that the documents in respect of which the privilege is claimed do not relate to the affairs of the State and as such no privilege could be claimed in respect of it, and thirdly that the documents having been directed to be produced should have been brought in court before any privilege could be claimed in respect of them.

(3.) ON the 22nd July 1959 an application was filed on behalf of the petitioners stating that the documents mentioned in the Schedule be called for from the persons shown therein. Item No. 9 on the application relates to files containing reports leading to the issue of detention order on Sri Moinul Haque Chowdhury in 1950. This document was to be summoned from the Deputy Commissioner Cachar or Chief Secretary to the Government of Assam, Shillong. Item No. 74 is Dossier Personal Folder and all other papers and documents regarding detention of Sri Moinul Haque Chowdhury produced before the Advisory Board under the Preventive Detention Act. These documents were called for from th Chief Secretary to the Government of Assam, Shillong or Special Superintendent of Police, C. I. D,, Shillong. The Sessions Judge on the 30th July 1959 passed an order granting the prayer of the petitioners to call for the documents mentioned in the application and directing issue of notices to the persons mentioned in the Schedule for sending the documents so as to reach the court on or before the 25th August 1959. On the 25th August 1959 a petition was filed by the State of Assam through the Advocate for the complainant for modification of the court's order of the 30th July 1959 on the ground that some of the documents did not relate to the subject matter of the charges as framed, some of the documents were hit by the provisions of Article 22 of the Constitution and some of the documents were privileged. By an order dated 12th September 1959 the earlier order of the 30th July 1959 was modified. As regards the contention that the documents were privileged documents it was observed in this order by the Sessions Judge that no petition by the heads of departments concerned had yet been filed and no indication was given in the petition what affairs of the State wee involved in the matter and how their disclosure would be prejudicial to the public interest. The claim therefore, of privilege was in effect rejected at that stage. The Sessions Judge however, has remarked further that - 'in items Nos. 4, 6. 1, ,_ 8, 9, 10, 16, 57, 58, 59, 68 and 74 the entire files' have been called for. The entire files need not be called for but only the document or the documents relating to the purpose of each of these items are to be called for,' In pursuance of the order of the 12th September 1959 the petitioners amended items 9 and 74 and the amended items read as follows: 9. Police or Intelligence Branch reports leading to the issue of detention order against Sri M. H. Choudhury, in 1950, under the P. D. Act. 74. Dossier and Personal Folder of Sri,M.H. Chaudhury, maintained by the Specia Superintendent of Police, C. I. D'., Shillong; and/or by Govt. of Assam. It will appear that from, item No, 9 the words 'Files containing reports' have been deleted and in their place the words 'Police or Intelligence Branch reports' have been substituted and in item 'No. 74 the words 'and;all other papers and documents regarding detention' have been deleted, Subsequent to the above order it appears that an affidavit was Bled by the Chief Secretary to the Government of Assam claiming privilege in respect of the documents mentioned in items No. 9 and 74. By an order dated 9th November 1959 the privilege claim : ed by the Chief Secretary was upheld by the Sessions Judge. In the affidavit filed by the Chief Secretary, he has stated that after having carefully considered the relevant documents he had come to the conclusion that they were unpublished official records relating to the affair State and that their disclosure will be prejudicial to public interest for the following reasons: 1. That documents called for are secret documents of political and administrative character, compiled for reasons of State and their production will cause disclosure of the secrets of the State, which is against public interest. 2. That while, by their very nature, these documents cannot be used as evidence for or against; any person, their production will expose to public view the method and nature of the working of the State security and intelligence system which is 4 against public interest. He further stated in the affidavit that he did not give permission Under Section 123 of the Indian Evidence Act to the officers from whom these records were called for, to produce the said documents or to give any evidence derived therefrom,