STATE OF PUNJAB Vs. TARLOK SINGH

JUDGEMENT

(1.) This is a revision petition against an order of Shri M.S. Virdi, Sub-Judge II Class, Gurdaspur. The learned Judge has before him a suit for declaration to the effect that the order dated June 2, 1982, passed by the Legal Remembrancer and Director Prosecution and Litigation and Secretary to Government, Punjab, Chandigarh, vide which the service of the plaintiff respondent as ADA Grade-II at Chandigarh were ordered to be no longer required, as illegal ultra vires etc., and sequally the plaintiff-respondent continues to be in service as Additional District Attorney, Grade-II despite the impugned order. During the course of trial, the plaintiff-respondent required a Government functionary to produce the records of the Cabinet meeting held on February 7, 1980, and Government Memo. 727-M-300-70/35918 dated September 11, 1978, issued by the Home Secretary to Government, Punjab, to the Director, Prosecution and Litigation, Punjab. The Secretary to Government, Punjab, Department of Home Affairs and Justice, Chandigarh, claimed privilege of these documents on the strength of Section 123 of the Evidence Act, which debars witnesses to be giving any evidence derived from un-published official record relating to any affairs of the 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. Now here the Secretary, Home Department, withheld the permission as the record of the Cabinet meeting, the decision arrived at by the Cabinet and the consequential Government orders were avowed to be privileged documents not permitted to be brought in evidence under Section 123 of the Evidence Act. The learned trial Judge, bearing perhaps in mind the provisions of Section 162 of the Evidence Act, overruled the claim of privilege and took the view that a witness summoned to produce the documents had to bring them to Court notwithstanding any objection which there may be to their production or to their admissibility and that the validity of any such objection need be decided by the Court. The learned trial Judge, however, seemingly ignored the later portion of Section 162 which provides that the Court, if it sees fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility. Even Section 162 of the Evidence Act carves out an exception in favour of documents which refer to matters of State, which are no other than relating to 'affairs of the State' the expression used in Section 123 of the Evidence Act. The aggrieved State has approached this Court in revision, asserting its claim that the documents afore-referred to, relate to the affairs of the State and that no witness should be permitted to put them in evidence before the Court.

(2.) It is crystal clear that Section 123 of the Evidence Act puts a bar on any witness producing evidence derived from unpublished official records relating to any affairs of the State unless permission has been sought from the officer at the head of the department concerned, and discretion is left with that Officer to give or withhold such permission, as he thinks fit. This relates to the competency of the witness to depose to such matters. On the other hand, Section 162 of the Evidence Act, which is in a different Chapter, relates to the examination of witnesses and puts a clarification that the witness summoned to produce a document shall, it is in his possession or power, bring it to the court, notwithstanding any objection which there may be to its production or to its admissibility and that the validity of any such objection shall be decided on by the Court. Here, the examination of such witness, requiring to produce such document, is regulated. As said before, even here the documents referring to matters of State are outside the scope of Section 162. It is thus crystal clear that the learned trial Judge committed a material irregularity bordering on usurpation of jurisdiction in not letting privilege being claimed with regard to the records relating to the Cabinet meeting and orders passed thereon. Thus the impugned order deserves to be and is hereby set aside, leaving it open to the plaintiff to take other appropriate steps, if deemed necessary, towards production of evidence. No costs.