JETHA NAND Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) ON May 5, 1964. the petitioner Jetha Nand made a complaint against Kanhaiva Lal and Gidu Mal in the Court of the Additional Munsiff Magistrate. Ajmer City (East) under Sections 381 and 411. Indian Penal Code. The allegations in the complaint were that Kanhaiya Lal was once the complainants clerk. During the period of his service he stealthily removed certain documents, mentioned in the complaint, from the possession of the complainant and he thus committed a theft. The complainant came to know of this fact when Kanhaiya Lal was examined in a Civil suit (No. 40 of 1961) in the Court of Civil Judge, Aimer. In that case, it is alleged, Kanhaiya Lal admitted of his having removed the petitioner's documents and having deposited the same with other accused Gidu Mal. Thereafter both Kanhaiva Lal and Gidu Mal. with a view to harass the petitioner, conspired and transferred the stolen documents to the Income Tax Department. The two accused requested the Income-tax Department for handsome reward in lieu of the production of the petitioner's documents. In the Course of trial, Jetha Nand submitted an application on October 15 1965. to the Additional Munsiff-Magis-trate. Ajmer City (East) to ask the Income-tax Officer. Award. Ajmer to produce the documents along with all the letters in original addressed by Kanhaiya Lal and Gidu Mal. This application was allowed on December 15. 1966. On January 10, 1969. the documents in question were produced before the Magistrate in a sealed cover along with a letter from the Commissioner. Income-tax. Jaipur, claiming privilege under Section 124 of the Evidence Act in respect of the documents including the letters addressed to him by Kanhaiya Lal and Gidu Mal, The petitioner opposed the claim of privilege and submitted that there was no occasion for claiming the same in a criminal trial and requested the Court to examine the documents and decide whether the Income-tax Department was entitled to claim the privilege in question. The Court by its truncated order, held that the adjustment journal could only be produced and that the letters addressed to the Commissioner. Income-Tax, Jaipur, by Kanhaiya Lal and Gidu Mal. need not be utilised as they were privileged documents. Against that order a revision-petition was filed in the Court of Sessions Judge, Aimer. The same was dismissed by Mr. Ghanshyam Das Gupta. Sessions Judge. Ajmer, by his order dated October 28, 1971,

(2.) AGAINST the above order Jetha Nand has filed this revision-petition. The petitioner submits that in a criminal case the production of letters addressed by Kanhaiya Lal and Gidu Mal. connecting the accused with the crime, is essential and in a case like that no privilege under Section 124. Evidence Act. could have been claimed by the Income-Tax Department. Learned counsel for the opposite side submits that as regards the question whether privilege should be claimed or not. the matter has to be decided by the Head of the Department or the officer concerned and he is the sole Judge to take a decision. His opinion is conclusive and the court cannot interfere with it.

(3.) SECTION 123 of the Evidence Act relates to the evidence as to the affairs of the State, whereas Section 124 pertains to the disclosure of a communication made to a Public Officer in official confidence. Although both the sections resemble each other in a number of points, the communication, which is made to a Public officer and which may relate to the affairs of the State, would be covered by Section 123 of the Evidence Act. But if the communication is made in the official confidence and where the affairs of the State are not involved, and if Public interest would otherwise suffer by disclosure. Section 124 shall apply. In a case under Section 123. the Court may inspect the documents or take other evidence to enable him to determine on its admissibility. The court cannot substitute its opinion for the opinion of the Head of the Department, in a case under Section 123 of the Evidence Act. If however, the case falls under Section 124. the Court can inspect the documents in question and determine the claim of privilege. In other words, the duty of the court for determining the question under Section 124 of the Evidence Act is to inspect the document and decide whether the communication was made in the official confidence and whether the Public interest will suffer by the disclosure of the contents of the document. A communication made to a Public officer voluntarily is not one made in official confidence: see B. R. Srinivasan v. B. Parakalaswamy Mutt. AIR 1960 Mys. 186. Thus returns submitted to an Income-Tax Officer and statement made to him cannot be said to be made in official confidence within the meaning of Section 124. Evidence Act vide Bhalchandra v. Chanbasappa. AIR 1939 Bom. 237. It is true that under the Income Tax Act and the rules framed thereunder Public servants are forbidden to make public or disclose any information contained in such documents. The prohibition, however does not extend to evidence given in courts of justice: see Venkatachella Chettiar v. Sampathu Chettiar. (1909) ILR 32 Mad. 62. In Jadobram Dey v. Bulloram Dey. (1899) ILR 26 Cal 281. it has been observed by Jenkins J. that Section 38 of the Indian Income-Tax Act, 1886. and the rules framed there under appear to have been enacted for the purpose of regulating the conduct of officers coming under its operation and from preventing any disclosure by them in the course of their duties and its object was to secure the interest of those making the returns under the Act and that the rule could not be directed against the production of relevant documents in the court of law, such as is sought in this case. Likewise in Chiragh Din Muhammad Bakhsh v. The Crown (1950) 52 Cri. L. J. 161 (Lah) it has been observed by the Lahore High Court that all communications made to Public officers are not in official confidence. Reports relating to the commission of offence are communications made to Public officers, but they are not in official confidence. It has been Lald down by Morris L. J. in Ellis v. Home Office (1953) 2 All. E. R. 149: When considering the Public interest and what might be injurious to Public interest. . . it seems to me that it is to be remembered that one feature and one facet of the Public interest is that justice should always be done and should be seen to be done.