STATE OF PUNJAB Vs. MADAN LAL GUPTA

JUDGEMENT

(1.) STATE of Punjab has filed this revision petition challenging order dated September 4, 1987, passed by Senior Sub-Judge, Ludhiana, disallowing the claim of privilege made by Secretary to Government, Punjab, with respect to production of documents at the stage of plaintiff's evidence In the suit brought by Madan Lal Gupta, challenge was to the order of his dismissal from Punjab Civil Service (Judicial Branch) dated June 30, 1977. The suit was contested and during the trial M. L. Gupta-the plaintiff, summoned Amar Nath Gandhi, an Assistant of the Office of Home Secretary to Government, Punjab, Chandigarh, with the office file showing the action taken on his representations dated January 12, 1977, January 27, 1977 and June 21/24, 1977 addressed to the Chief Minister of Punjab. The State of Punjab claimed privilege by means of an affidavit sworn by Sh. R. P. Ojha, IAS, then Finance Commissioner and Secretary to Government, Punjab, Department of Home Affairs and Justice. In the said affidavit he stated that he bad carefully considered the aforesaid documents and came to the conclusion that it comprises of documents and notings which have been made by various officers and officials in the discharge of official duties and the same were not public official records relating to the affairs of the State and that the disclosures of the contents of such documents and files would expose the said officers/officials and as such would hamper the proper functioning of the public services as the officers/ officials would in future feel hesitant in expressing their opinions fearlessly in such administrative matters That being the position he did not give permission to anbody to give evidence derived therefrom as required under section 123 of the Indian Evidence Act. Disagreeing with the opinion expressed by the Secretary, Punjab Government, Senior Sub Judge, directing the relevant records to be produced in the Court on the next date to be fi (sic)ed for recording evidence of the plaintiff.

(2.) SECTION 123 of the Indian Evidence Act reads as under : " 123. Evidence as to affairs of State :--No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit. '' The aforesaid provision has been subject-matter of discussion in several judicial pronouncements. It will be useful to refer to them.

(3.) IN The State of Punjab v. Sodhi Sukhdev Singh, A. I. R. 1961 S. C. 493, in the majority judgment it was observed as under :-" reading Sections 123 and 162 together the Court cannot hold an enquiry into the possible injury to public interest which may result from the disclosure of the document in respect of which privilege is claimed under Section 123. That is a matter for the authority concerned to decide; but the Court is competent, and indeed is bound, to hold a preliminary enquiry and determine the validity of the objections to its production, and that necessarily involves an enquiry into the question as to whether the evidence relates to an affairs of State under Section 123 or not. In this enquiry the Court has to determine the character or class of the document. If it comes to the conclusion that the document does not relate to affairs of State then it should reject the claim for privilege and direct its production If it comes to the conclusion that the document relates to affairs of State then it should reject the claim for privilege and direct its production. If it comes to the conclusion that the document relates to affairs of State it should leave it to the head of the department to decide whether he should permit its production or not. Documents which embody the minutes of the meetings of the Council of Ministers and indicate the advice which the. Council ultimately gave to the Rajpramukh and the document embodying the advice tendered by the Public Service Commission to the Council of Ministers, are protected under Section 123 and if the head of the Department does not give permission for their production, the Court cannot compel the State to produce them. "