Daily Archives: August 15, 2012

Women themselves are so pissed off this CAW cells business they are championing / petitioning for abolition of CAW cells !!

 

Women themselves are so pissed off this CAW cells business they are championing / petitioning for abolition of CAW cells !! In the instant case, the petitioner (a wife) is seeking abolition of CAW cells !! However Delhi High courts says continue with CAW cells !!

 

Delhi High Court

Smt. Jasbir Kaur vs State (Govt. Of Nct Delhi) And Ors. on 27 July, 2006

Equivalent citations: 134 (2006) DLT 325

Author: S Aggarwal
Bench: S Aggarwal

JUDGMENT

S.N. Aggarwal, J.

1. The petitioner was married to Sardar Satinder Singh according to Sikh rites on 28.11.2004. After marriage, there was a matrimonial discord between the couple on account of which the petitioner left her matrimonial home and filed a complaint of harassment and misappropriation of her dowry and istri dhan articles by her husband and other members of her in-laws family. Learned Counsel for the petitioner says that the petitioner did not leave her matrimonial home of her own and according to him she was turned out of from her matrimonial home after giving beatings to her on 25.3.2005.

2. The grievance of the petitioner in this writ petition is that despite her complaint the police did not register a case under Section 406/498A/34 IPC against her husband and other members of her in-laws family.

3. In response to the notice of this writ petition, a status report has been filed by the respondents which reveals that a case under Section 406/498A/34 IPC has already been registered against the husband of the petitioner and other members of her in-laws family.

4. This addresses the first prayer made by the petitioner in the present writ petition.

5. The petitioner has also made other prayers in this writ petition which are to the following effect that this Court should abolish CAW Cells and direct that as soon as the police receives any complaint of a congnizable offence, the same should be dealt with as per the provisions in the Code of Criminal Procedure 1973.

6. Learned Counsel for the petitioner has relied upon the provisions contained in Article 15 of the Constitution of India and on the strength of the same, he has contended that there cannot be any discrimination in the matter of investigation on the ground of religion, race, caste, sex, place of birth or any of them.

7. The creation of CAW Cells for investigation of crime pertaining to women, in my opinion, does not cause any discrimination on the basis of sex for the CAW Cells have been constituted with a social purpose so that the crimes relating to women are dealt with sensitivity. CAW Cell is like any other specialized wing of the Delhi Police like Special Cell, Crime Branch, etc., where firstly an attempt is made to bring about unity between the two spouses so as to make the marriage a success. On the failure of these reconciliation attempts, the law is allowed to take its course. Thus no fault can be found with the creation of CAW Cells.

8. In Mr. Raj Kumar Khanna v. The State (NCT of Delhi) and Ors. 2002 (1) JCC 327, the Division Bench of this Court has observed as under:

| …Police Headquarter framed the procedure to be
| followed by the C.A.W. Cell with the intention of
| preventing abuse of the process of law. But in this
| case police committed abuse of the process
| established by its Commissioner. No attempt was
| made to resolve the difference between Manoj Kumar
| and respondent No. 5 nor efforts were made to bring
| about amicable settlement for which purpose Crime
| Against Women Cell was created. This cell is meant
| to safeguard the marriage and not to ruin it by
| registering case immediately on the asking of the
| complainant. Once an FIR is registered it becomes
| difficult to solve matrimonial tangles and things
| reaches such a pass that it cannot be restored back

9. Upon consideration of all the facts and circumstances of the case, I am of the view that the prayer of the petitioner insofar as it relates to abolition of C.A.W. Cells is concerned, the same cannot be accepted.

10. In terms of the aforesaid order, this writ petition is disposed of.

 

source

indiankanoon.org

 

wife advocate files 406, 498a etc against husband advocate and father in law advocate !!! One happy family I say !!

 

“….Wife , an advocate files 406, 498a etc against husband an advocate and father in law another advocate !!! ; Father in Law applies for quashing the case u/s 406 and 498a against him and his son etc ; The court quashes 406 but does not quash 498a ; What degree of offense constitutes 498 etc is discussed ….”

Delhi High Court

Raj Kumar Khanna vs The State (Nct Of Delhi) And Ors. on 15 October, 2001

Equivalent citations: 95 (2002) DLT 147, I (2002) DMC 200, 2002 (61) DRJ 365

Author: U Mehra
Bench: U Mehra, M A Khan

JUDGMENT

Usha Mehra, J.

1. Mr. Raj Kumar Khanna, a practicing lawyer of this Court has sought for the quashing of the FIR No. 146/99 registered at Police Station Naraina, under Section 498A/406/34 Indian Penal Code (In short IPC) against him and his family members at the instance of his daughter-in-law Ms. Inderjit Kaur Sidhu, respondent No. 5 another practicing lawyer of this Court.

2. Son of the petitioner Manoj Kumar is also a practicing lawyer of this Court. He got married to Inderjit Kaur Sidhu on 22nd September, 1996 according to Hindu rites at Gurudwara in Sarojini Nagar, New Delhi. After the marriage the newly married couple started living with the petitioner in his apartment. Relations between newly married couple became strained. According to petitioner, respondent No. 5 did not subscribe to the view points and values of petitioner and his family. She was adamant and not interested to live with her husband in the family of her husband. She left the matrimonial home on 5th September, 1997 informing her husband that she would never come back. Son of the petitioner filed a petition for divorce. Along with this petition Manoj also filed an application under Section 27 of the Hindu Marriage Act attaching list of articles left by respondent No. 5. The said petition was listed on 26th May, 1999. Summon on that petition was ordered to be issued. It is further averred that respondent No. 5 on becoming aware of Manoj Kumar’s filing of a petition of divorce, fabricated a complaint not only against her husband, but implicated all family members of the petitioner with oblique motives and as a retaliation to the divorce proceedings initiated by Manoj Kumar. Respondent No. 5 filed a well thought out complaint so that all members of petitioner’s family could be implicated. The complaint dated 9th July, 1999 was lodged with the Deputy Commissioner of Police, South-West District, Vasant Vihar i.e. respondent No. 2. The said complaint was registered on 9th July, 1999 itself under Section 498A/406/34 IPC at Police Station Naraina. After the registration of the case, SI Nirmal Sharma, respondent No. 4 along with respondent No. 5 raided the apartment of the petitioner at 9.30 A.M. on 12th July, 1999. At that time the petitioner was about to leave his house in order to attend his cases in the High Court. Entire house of the petitioner was ransacked, every article stored in trunks and/or in wooden diwans and almirahs were pulled out. Each and every drawer and filing rack of his office was ransacked. Ms. Inderjit Kaur removed the sarees and gold jewellery of petitioner’s wife claiming those to be hers. Police accordingly seized even the articles belonging to petitioner’s wife. Inderjit Kaur not only got seized sarees and gold ornaments but removed letters, greeting cards which she had written to her husband during the period she stayed away from her husband. Those letters, greeting cards when produce would show that she was all complements for petitioner and his wife. Police in connivance with Inderjit Kaur took away photographs and a diary that contained notes of the outings made and places visited by Manoj Kumar and respondent No. 5. The object of conducting the raid was to remove documentary evidence from the house of the petitioner which would have otherwise proved their innocence and falsity of the allegations made by respondent No. 5 in her complaint dated 9th July, 1999. Protest was raised by the petitioner and his wife than the articles like letters, photos, diary and greeting cards could not form “Stridhan” hence these could not be seized. But police in particular respondent No. 4 in connivance with respondent No. 5 brushed aside the protests of the petitioner. Illegally and forcibly police permitted respondent No. 5 remove those letters, greeting cards, diary and photographs. Petitioner insisted signing the seizure memo. Respondent No. 4 forced by petitioner allowed him to counter sign the letters, greeting cards, photos and the diary. Seizure memo was prepared at the spot. Thereafter the petitioner and his wife were arrested. However, bail was granted to them subsequently. While filing the charge-sheet, the said letters, greeting cards, photos and diary have not been filed as a part of the documents. This the respondents did it deliberately. It amounts to tampering with the evidence. The police authorities acted on extraneous consideration and in a hurry without verifying the facts in raiding his house. This act of the respondents has caused irreparable loss to the reputation of the petitioner. Allegations made in the FIR do not implicate the petitioner nor any allegations levelled against petitioner fall under the provision of Section 498A or under Section 406 IPC. Therefore, seeks quashing of FIR against him as well as the proceedings emanating there from.

3. Counsel for the respondents took preliminary objection on the maintainability of this writ petition, inter alia, on the ground that charge-sheet has already been filed and the proceedings initiated, therefore, the FIR cannot be quashed. We find no substance in this argument in view of the Full Bench decision of this Court in the case of Neelam Mahajan Singh v. Commissioner of Police and Ors. 1993 JCC

536. Article 226 of the Constitution of India empowers the Court to issue an appropriate writ. It does not restrict or effect the power of this Court in appropriate cases to take action merely because charge-sheet has been filed. Supreme Court in the case of Ashok Chaturvedi and Ors. v. Shitul H. Chanchani and Anr. held that where allegations do not make out any offence, powers under Section 482 Cr.P.C. can be exercised. It is not necessary for the Court to wait for the framing of the charge. This power can be exercised earlier that the framing of the charge. Therefore, contention of counsel for the State or for that matter of the respondent No. 5 that the challan has been filed and all these objections can be raised at the time of framing of the charge, in view of decision in Ashok Chaturvedi’s case (Supra) has no substance.

4. Mr. D.C. Mathur, Senior Advocate, appearing for the petitioner has sought quashing of FIR on the following grounds:- (1) that the procedure adopted by SI Nirmal Sharma was extraordinary. It is contrary to the well regulated procedure followed by the police in other similarly situated case; (2) that the allegations levelled against the petitioner do not make out any case either under Section 406 IPC or under Section 498-A IPC; (3) The complaint dated 9th July, 1999 was lodged at the instance of respondent No. 5 after two years of her leaving the matrimonial home. It is a meticulously executed legally drafted document and well thought out comprehensive complaint. There was no reason for the police to record her alleged supplementary statement purported to be recorded on 10th July, 1999. This smacks of malafide on the part of the investigating officer who in connivance with connivance with respondent No. 5 falsely implicated each and every member of petitioner’s family.

5. Challenging the procedure adopted by the police in rushing through action on the complaint, Mr. Mathur contended that it was contrary to the directions issued by Commissioner of Police. Complaint was lodged by respondent No. 5 with the Deputy Commissioner of Police (South-West District) Delhi on 9th July, 1999 and at a super speed the FIR bearing No. 146/99 was ordered to be registered at Police Station Naraina against the petitioner and his family members. The speed at which the FIR was got registered shows malafide on the part of police officials. In the normal course the complaint ought to have been endorsed by SHO Police Station Naraina and then forwarded it to Crime Against Women Cell. Since there was a connivance between respondent No. 2 i.e. Dy. Commissioner of Police (South West District) and Ms. Inderjit Kaur Sidhu (respondent No. 5) the case was got registered on the basis of covering letter sent by Asstt. Commissioner of Police (Crime) with direction to register the case and, thereafter transferred the investigation to the Crime Against Women Cell, Vasant Vihar, New Delhi. This action is contrary to the general practice and procedure followed by the Crime Against Women Cell. In this regard Mr. Mathur drew our attention to the rejoinder affidavit filed by the Deputy Commissioner of Police (Police Head Quarters-II) in Crl.W.No. 127/1992 to show that the Crime Against Women Cell was created by the Commissioner of Police to receive such complaints and then make efforts to ascertain facts and try for reconciliation. Mr. Dinesh Mathur in particular referred to paras 4 & 5 of the said affidavit in support. Those paras are reproduced as under:-

| 4. Unfortunately, during the last decade there has
| been sharp increase in the cases of bride burning,
| homicide, suicide on account of cruel treatment
| meted out to the brides at the hands of husbands,
| in-laws or on account of dowry demands and that
| necessitated the establishment of Special Cell to
| enquire into and investigate such like incidents
| and thus a cell known as ‘CRIME AGAINST WOMEN CELL”
| was established by means of S.O. No. 281/1989 (Copy
| of which is annexed hereto as Annexure-‘A’).
|
| Many a times it has been urged that when a
| complaint of a bride against the husband and in-
| laws is received by the staff of the Crime Against
| Women Cell why a case is not immediately registered
| in terms of Section 154 of Criminal Procedure Code.
| In this behalf, with respect, it is submitted that
| it is thought advisable in cases where the
| differences have not reached the stage of tragedy,
| the attempt should be made to forge unity between
| the two spouses so that they are brought about to
| make the marriage a success. On failure of these
| reconciliation attempts the law should be permitted
| to take its course, secondly, it is submitted that
| Section 154 Cr.P.C. does not in absolute terms
| command the registration of a First Information
| report and more so when in majority of the cases,
| the complaints, are made to higher authorities and
| not to the in charge of Police Stations. With
| respect, it is submitted that keeping in view the
| prevailing atmosphere of cruelty towards women the
| legislature in its wisdom introduced Section 498-A
| and 304-B in the Indian Penal Code.
|
| 5. The proceedings taken up by the Crime Against
| Women Cell are mainly directed to bring about a
| reconciliation between the strained spouses. It is
| always kept in mind that the petitioner-wife should
| not drag the husband-respondent straight to the
| Court, lest the relations between the couple become
| more strained. On the failure of reconciliation,
| resort to the provisions of law is taken to. It
| will not be out of place to mention that even the
| matrimonial courts, during divorce proceedings, try
| to bring about reconciliation between the parties.
| If a respondent chooses not to take part in the
| proceedings before the Crime Against Women Cell,
| well it is his sweet will. No action is taken for
| non-appearance. There is no compulsion for the
| respondent to take part in the proceedings. The
| proceedings are in the nature of enquiry to find
| out the truth as to the allegations made in the
| complaint before registering a case. For example,
| it also becomes necessary to ascertain the factum
| of marriage even, and also the allegations of
| cruelty and Stridhan.

6. Mr. Mathur then contended that another affidavit was filed by the Deputy Commissioner of Police (Hqrs.-II) in Crl.W.No. 663/1995 wherein he has stated as under:-

| “The proceedings by the Crime Against Women Cell
| are in the nature of enquiry to find out the truth
| as to the allegations made in the complaint before
| registering a case. For example it becomes
| necessary to ascertain the factum of marriage, even
| and also the allegations of cruelty and Stridhan.”

7. In para 16 of this affidavit Mr. Srivastava, Dy. Commissioner of Police (Hqrs.-II) stated that the enquiry by the said CAW Cell is in the nature of primary enquiry with the sole object to make the marriage success and in case the matter is not reconciled between the parties the complaint is proceeded in accordance with law. In case the allegations made in the complaint are not found to be true the complaint is dropped/closed. He drew our attention to a press cutting appearing in the Times of India (Supplement) dated 21.9.1999. It as relied by the State and filed with its rejoinder affidavit to show that Crime Against Women Cell has never registered a case without a proper enquiry being conducted. It was also clarified that if a complaint is found to be baseless, officials of these Cells do not register a case. This was so stated by the Deputy Commissioner of Police (South West District). But police contrary to its own affidavit as referred to above acted just in the reverse. It did not bother to verify the facts nor bothered to call the parties for reconciliation. Instead police in a hurry registered the case in super speed. It is unimaginable that the Asstt. Commissioner of Public could have verified the complaint as per the requirements as spell out in the affidavit of Dy. Commissioner of Police (Hqrs.). Nothing has been placed on record to show what was the grave urgency in registering the case without holding preliminary inquiry particularly when the complainant herself conveniently slept over the matter for almost two years. This shows malafide on the part of the police who in connivance with respondent No. 5 wanted to harass the petitioner and his family and also wanted to destroy the evidence against her. Registration of the case was for extraneous considerations done under the influence used by respondent No. 5. Police Headquarter framed the procedure to be followed by the C.A.W. Cell with the intention of preventing abuse of the process of law. But in this case police committed abuse of the process established by its Commissioner. No attempt was made to resolve the difference between Manoj Kumar and respondent No. 5 nor efforts were made to bring about amicable settlement for which purpose Crime Against Women Cell was created. This cell is meant to safeguard the marriage and not to ruin it by registering case immediately on the asking of the complainant. Once an FIR is registered it becomes difficult to solve matrimonial tangles and things reaches such a pas that it cannot be restored back. In this case because of the ulterior motive and due to malafide and under pressure exercised by respondent No. 5, the FIR was registered in a shortest possible time and with haste police raided the house of the petitioner and arrested him and his wife in order to seek vendetta against them.

8. Mr. D.C. Mathur then urged that omnibus allegations cannot be taken at their face value. It is so held by Supreme Court in the case of Lal Ram and Ors. v. State of U.P. . Apex Court in that case observed that duty of the Investigating Officer is not merely to bolster up prosecution case with such evidence as may enable the Court to record a conviction but to bring out the real unvarnished truth. Similar view was expressed by Supreme Court in the case of Jamuna Chaudhary and Ors. v. State of Bihar . That legislative intent of providing succour to a genuinely harassed and tormented woman cannot be permitted to become a tool/instrument in the hands of a woman out to satisfy her ego by harassing and tormenting her in-laws when her marriage has failed for reasons extraneous to the relevant provision of law. In support of his contention Mr. Mathur placed reliance on the decision of Supreme Court in the case of G.V. Rao v. L.H.V. Prasad and Ors. where his Lordships observed:-

| “There has been an outburst of matrimonial disputes
| in recent times. The marriage is a sacred ceremony,
| the main purpose of which is to enable young couple
| to settle down in life and live peacefully. But
| little matrimonial skirmishes suddenly erupt which
| often assume serious proportions resulting in
| commission of heinous crimes in which elders of
| family are also involved with the result that those
| who could have counselled and brought about
| reapproachment are rendered helpless on their being
| arrayed as accused in the criminal case.”

In the case in hand by implicating petitioner and the speed with which police acted did nothing but rendered him helpless in counselling and putting better sense to the couple.

9. Mr. Lekhi countering these arguments urged that expediting the action by itself is no ground to quash the FIR. We agree with Mr. Lekhi that on this ground itself FIR cannot be quashed but at the same time we cannot ignore the haste with which police acted violating its own guidelines.

10. Reading of the complaint makes it apparent that Court has been used for oblique purposes contended Mr. Mathur. There are no chance of any ultimate conviction against the petitioner on the allegations made in the complaint. Since the powers have been executed malafide by respondent sin connivance with each other for extraneous consideration in order to harass the petitioner without even substantiating the same, therefore, such an FIR cannot stand, it has to be quashed so said the Supreme Court in the case of State of Bihar and Anr. etc. v. Shri P.P. Sharma and Anr. etc. . Mr. Mathur drew our attentions to the guidelines laid down by the Supreme Court for quashing the FIR in the case of State of Haryana and Ors. v. Chaudhary Bhajan Lal and Ors. . Paragraph 107 of the said judgment itemise guidelines as follows:-

| 1. Where the allegations made in the First
| Information Report or the complaint, even if they
| are taken at their face value and accepted in their
| entirety do not prima-facie constitute any offence
| or make out a case against the accused.
|
| 2. Where the allegations in the First Information
| Report and other materials, if any, accompanying
| the FIR do not disclose a cognizable offence,
| justifying an investigation by police officers
| under Section 156(1) of the Code except under an
| order of a Magistrate within the purview of Section
| 155(2) of the Code.
|
| 3. Where the uncontroverter allegations made in
| the FIR or complaint and the evidence collected in
| support of the same do not disclose the commission
| of any offence and make out a case against the
| accused.
|
| 4. Where, the allegations in the FIR do not
| constitute a cognizable offence but constitute only
| a non-cognizable offence, no investigation is
| permitted by a police officer without an order of a
| Magistrate as contemplated under Section 155(2) of
| the Code.
|
| 5. Where the allegations made in the FIR or
| complaint are so absurd and inherently improbable
| on the basis of which no prudent person can ever
| reach a just conclusion that there is sufficient
| ground for proceeding against the accused.
|
| 6. Where there is an express legal bar engrafted
| in any of the provisions of the Code or the
| concerned Act (under which a criminal proceeding is
| instituted) to the institution and continuance of
| the proceedings and/or where there is a specific
| provision in the Code or the concerned Act,
| providing efficacious redress for the grievance of
| the aggrieved party.
|
| 7. Where a criminal proceeding is manifestly
| attended with malafide and/or where the proceeding
| is maliciously instituted with an ulterior motive
| for wreaking vengeance on the accused and with a
| view to spite him due to private and personal
| grudge.

11. Mr. Mathur contended that guidelines Nos. 5 and 7 are material for the purpose of quashing the FIR in question. The guidelines No. 5 stipulate quashing of the FIR where allegations are so absurd and inherently improbable that no prudent person can reach a just conclusion that there are sufficient grounds for proceeding against the accused. Relying on this guideline, Mr. Mathur contended that the petitioner who is a practicing lawyer aged about 65 years has been attending the court regularly and so is the case of respondent No. 5, if any cruelty had been inflicted on her she could not have attended the court every day moreover this fact would have been known in the Bar to every one. But nothing of this sort happened. Allegations that petitioner gave beating to respondent No. 5 with stick and taunted her are so absurd and inherently improbable that this Court must necessarily reject the same. Guideline No. 7 as reproduced above indicates that where a criminal proceeding is manifestly attended with malafide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge, such an FIR must be quashed. On facts of this case, allegations levelled by complainant smacks a malafide and personal vendetta from start to finish. The complainant left the matrimonial home on 5.9.1997. As per her own showing she continued to keep channel of communication open with her husband even after leaving the matrimonial home. But when the petitioner’s son filed divorce petition on 26th May, 1999 as a retaliation she lodged the present complaint in order to wreck vengeance. In this view of the matter the FIR lodged by her requires quashing. In the case of Madhavrao Jiwaji Rao Scindia and Anr., etc. v. Sambhajirao Chandrojirao Angre and Ors., etc. Apex Court observed that “special features of a case” must also be taken into account at the time of quashing proceedings. Reliance was also placed on following decisions: K. Rama Krishna and Ors. v. State of Bihar and Anr. ; Ashim K. Roy v. Bipinbhai Vadilal Mehta and Ors. ; Ashok Chaturvedi and Ors. v. Shitul H. Chanchani and Anr. : State of West Bengal and Ors. v. Swapan Kumar Guha and Ors. ; Jagdish Mitter Maini v. Canara Bank and Anr. 2000 III AD (Delhi) 137. Cumulative affect of above decisions, according to Mr. Mathur, is that High Court’s power to quash an FIR and proceedings initiated on extraneous consideration is extremely wide. It does not in any way stand diluted. Respondent No. 5 in connivance with police officials tampered with evidence when they removed letters, diary, greeting cards and photographs etc. These documents do not form part of the challan. If placed on record it will conclusively prove the allegations of the complainant to be absolutely false and baseless. The factum of removal of the letters, diary, greeting cards and photographs has been admitted by all the respondents, though the police officer in their affidavit have tried to wriggle out of their illegal act by saying that these letters, greeting cards, diary and photographs were voluntarily given by the petitioner as those belonged to the complainant hence were seized yet not produced with the challan. These by no stretch of imagination Officer not only committed illegality buy tampered and destroying the evidence. There was no question of petitioner voluntarily handing over these documents. Police is trying to cover up its misdeeds.

12. So far as the charge under Section 406 IPC is concerned Mr. Mathur contended qua the petitioner it must necessarily fail. Perusal of the FIR clearly show that respondent No. 5 or for that matter her family members never entrusted any property to this petitioner. In the absence of entrustment the petitioner cannot prima facie be held guilty of misappropriation. Even otherwise respondent No. 5 has made general allegations against the petitioner ascribing no specific role to him. The allegations made being omnibus allegations can be read to his advantage. Even if the allegations made in the FIR are accepted on its face value the petitioner can neither be convicted under Sections 406 IPC nor under Section 498A IPC. Complainant has named each and every member of the family just as a pressure tactics.

13. Mr. Mathur contended that a comprehensive legally drafted and well thought out complaint was lodged after 2 years of leaving the matrimonial house. There was no occasion for the police to build up new case by recording supplementary statement of the complainant. In her statement she specifically stated that except her father she did not disclose these facts to anyone. Hence the affidavit of neighbour obtained by the police was motivated. it was procured to falsely implicate the petitioner and his family. According to complainant’s own showing she left the matrimonial home on 5th September, 1997, whereas she lodged the complaint on 9th July, 1999 i.e. almost after two years. The delay in lodging the complaint remained unexplained. In fact this complaint was a counter blast to her husband’s petition for divorce filed on 26th May, 1999 on which notice was issued on 3rd July, 1999. Notice could not be served on complainant because her house was found locked on 4th, 5th, 6th, 7th, 8th, 9th & 10th July, 1999. On learning that her husband had filed divorce petition she got legally drafted complaint. Reading of the said complaint leaves no manner of doubt that dates of alleged incidents mentioned in complaint and Hindi typed sentences are duly deliberated, thought out and manufactured to rope in petitioner’s family. It is not a spontaneous complaint. Long drawn complaint can’t be but deliberated, calculated and fabricated, no action on the same can be taken. To support his contention Mr. Dinesh Mathur, Senior Advocate, relied on the decision of Supreme Court in the cases of Datar Singh v. The State of Punjab as well as Kans Raj v. State of Punjab and Ors. .

14. On the other hand Mr. P.N. Lekhi, Senior Advocate, appearing for respondent No. 5 vehemently contended that allegations in the FIR squarely make out case under Section 498A and 406 IPC. Contents of the complaint show petitioner to be guilty and his cruelty inflicted on respondent No. 5 squarely fall under the provisions of Section 498A IPC. He, however, accepted that ordinary conduct is not covered under the definition of Section 498-A IPC. Mr. P.N. Lekhi contended that the Statement of Objects and Reasons can be referred to if there is any doubt raised regarding the scope and intent of the amendment in the I.P.C. by virtue of which Section 498A was inserted. To support his contentions he referred to the case of Utkal Contractors and Joinery Pvt. Ltd. v. State of Orissa wherein Apex Court observed:-

| “A statute is best understood if we know the reason
| for it. The Statement of Objects and Reasons are
| what is known as the Heydon’s Rule.”

15. He also placed reliance on the decision of Supreme Court in the case of Kanta Goel v. B.P. Pathak and Ors. to contend that the interpretation must be illumined by the goal though guided by the word. Similarly in the case of Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. and Ors. it was observed that:-

| “Interpretation must depend on the text and the
| context. They are the basis of interpretation. One
| may well say if the text is texture, the context is
| what gives colour. Neither can be ignored. Both are
| important, the interpretation match the contextual.
| A statute is best interpreted when we know why it
| was enacted.”

Section 498A was enacted keeping in view the increasing number of dowry death and the harassment caused to married women by their husbands and the in-laws and in order to pre-empt their status. Since this is the intention of the Legislature, therefore, Mr. Lekhi contended that the FIR in question cannot be quashed on the technical pleas raised by Mr. D.C. Mathur. The FIR in question discloses cognizable offence against the petitioner. Moreover, demand of dowry is not a pre-condition nor necessary to attach the provisions of Section 498-Afor that reliance on the decision of Supreme Court in the case Pyare Lal v. State of Haryana was placed.

16. Countering the argument of procedural fault in investigation and registration of the case as pointed out by Mr. Mathur, Mr. Lekhi said that by not effecting reconciliation itself is no ground to quash the FIR. Reading of the complaint makes out a case for which petitioner has been rightly booked. The complaint categorically states that in spite of the best efforts made by her and her relations reconciliation was absolutely beyond reach because of the adamant attitude of the accused persons. Once the FIR discloses a cognizable offence police officer is duty bound to register the case as held by Supreme Court in the case of Kuldeep Singh v. State (1994 JCC 414). In the present case since there are specific allegations of cruelty which prima facie constitute an offence under Section 498A/416 IPC, therefore, this court would not like to quash the FIR and the proceedings emanating there from. Supreme Court in the case of Rajesh Bajaj v. Govt of NCT of Delhi, held that power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest or rare case. Similar view was taken by the Supreme Court in the cases of State of Bihar v. P.P. Sharma reported in 1992 (Suppl.1) SCC 222, State of Maharashtra v. Ishwar Piraji Kalpatri and Ors. where the Apex Court observed that:-

| “Malafides or animus of complainant or prosecution
| not relevant, if on the basis of allegation in the
| complaint a prima facie case is made out, the High
| Court has no jurisdiction to quash the proceedings.”

17. That filing of the divorce petition by the petitioner’s son will not absolve the petitioner of the offence committed by him and other members of his family. In fact his son filed the divorce petition in order to cover up the cruelty committed towards the complainant. Complainant was not aware of the divorce petition having been filed by her husband when she lodged the complaint. The delay in filing the complaint has already been explained in the complaint itself. She and her family members were making efforts to bring about the reconciliation hence did not deem it proper to rush to the police.

18. Before we deal with the case on merits we may make it clear that charge sheet in this case has already been filed. With that charge-sheet supplementary statement of the complainant and other documents have been filed. Question arose whether for deciding this petition at this stage can this court look into and rely on all the papers filed with the charge-sheet. Mr. D.C. Mathur, Sr. Advocate fairly conceded that the documents forming part of the charge-sheet can also be perused while considering then question of quashing the FIR.

19. In order to appreciate respective merits of the case as urged by counsel for the parties, we may have glance to the provision of Section 498-A and 406 IPC which are reproduced as under:-

| 406. Punishment for criminal breach of trust.-
| ———————————————
| Whomever commits criminal breach of trust shall be
| punished with imprisonment of either description
| for a term which may extend to three years, or with
| fine, or with both.

| 498A. Husband or relative of husband of a woman
| subjecting her to cruelty.-
| ———————————————
| Whoever, being the husband or the relative of the
| husband of a woman, subjects such woman to cruelty
| shall be punished with imprisonment for a term
| which may extend to three years and shall also be
| liable to fine.
|
| Explanation – For the purpose of this section,
| “cruelty” means –
|
| (a) any willful conduct which is of such a nature
| as is likely to drive the woman to commit suicide
| or to cause grave injury or danger to life, limb or
| health (whether mental or physical) of the woman; or
|
| (b) harassment of the woman where such harassment
| is with a view to coercing her or any person
| related to her to meet any unlawful demand for any
| property or valuable security or is on account of
| failure by her or any person related to her to meet
| such demand.

20. That the argument of Mr. Lekhi that demand is not a precondition to constitute cruelty, we are afraid we cannot subscribe to this view. The provision of Section 498-A was brought on the statute book because of the increasing number of dowry deaths. It is a matter of serious concern. Cases of cruelty by husband and his relations which culminate in suicide by, or murder of, the hapless woman concerned constitute only a small fraction of the cases involving such cruelty. Indian Penal Code and the Indian Evidence Act were suitably amended to deal effectively not only with the cases of dowry deaths but also cases of cruelty to married women by their in-laws. Even if the conduct of the husband and in-laws which is willful has not actually led her to commit suicide or caused grave injury or danger to life, limb or health, but such a willful conduct which causes physical and mental torture amount to cruelty. The intention of the Legislature is clear that the wife is not to be ill-treated by her husband and in-laws under any circumstances be that of a willful conduct or constant harassment nagging humilation, mal-treatment or physical or mental torture. The intention to insert Section 498-A IPC was to provide a better and respectable status to a woman at her matrimonial home apart from curbing dowry menace. Supreme Court in the case of Brij Lal v. Prem Chand and Anr. 1989 Supp. (2) SCC 680 also had a change to consider the object and purpose of introducing provisions of Section 498A/304 and Section 113-A and 113-B in the 4;79H7m9m9;10H Evidence Act and observed:-

| The degradation of society due to the pernicious
| system of dowry and the unconscionable demands made
| by greedy and unscrupulous husbands and their
| parents and relatives resulting in an alarming
| number of suicidal and dowry deaths by women has
| shocked the legislative conscience to such an
| extent that the legislature has deemed it necessary
| to provide additional provisions of law, procedural
| as well as substantive, to combat the evil and has
| consequently introduced Sections 113-A and 113-B in
| the Evidence and Section 498A and 304-B in the
| Penal Code.”

In the case of Pawan Kumar And Ors. v. State of Haryana Apex Court observed that the courts must adopt that construction which “suppresses the mischief and advances the remedy.”

21. While bringing the provision of Section 498-A IPC on the Statute book, the Legislature did not define the word “Cruelty”. IT has been used in relation to human conduct and human behavior. Reading of explanation (a) of Section 498A IPC makes it clear that it deals with cruelty arising out of willful conduct to harm the woman and that willful conduct has to be of such a nature as is likely to drive the woman to commit suicide or to cause grave injury to her life, limb or health. On the other hand explanation (b) deals with cruelty related to demand of property or valuable security. Therefore, in one case cruelty is willful which forces woman to commit suicide but explanation (b) relates to demand. Demand is a pre-condition to attract the provision of explanation (b) of Section 498A IPC. Admittedly complainant has built her case on explanation (b) of Section 498A IPC.

22. Keeping the intention of the legislature in mind we have to see whether the conduct of this petitioner as alleged by respondent No. 5 in her complaint dated 9th July, 1999, as well as of supplementary statement dated 10.7.99 and other documents relied by the prosecution amount to cruelty falling under explanation. (b). This means the act of the petitioner towards respondent No. 5 must relate to “unlawful demand”. Perusal of allegations levelled by the complainant either in her complaint or supplementary statement against this petitioner according to Mr. Mathur would not constitute cruelty related to unlawful demand. Moreover language of the complaint cannot be said to be spontaneous. Alleged dates of incidents appears to have been picked up which fell on various festivals and courts were closed so that conveniently she could level allegation. For example 20th October, 1996 was Karva Chouth, 10th November, 1996 was Deepawali, 13th January, 1997 was Lohri and 14th January, 1997 was Sankranti. On all these dates this Court was closed. In the case of Datar Singh v. State of Punjab (Supra), the Apex Court found that such an FIR becomes suspicious when it was neatly written. Mr. Mathur further said that the way this complaint was written it cannot be called spontaneous, rather it appears to be calculated. The Apex Court in the case of Kans Raj v. State of Punjab and Ors. observed :-

| “A tendency has, however, developed for roping in
| all relations of the in-laws of the deceased wives
| in the matters of dowry deaths which, if not,
| discouraged is likely to affect the case of the
| prosecution even against the real culprits.”

23. Bombay High Court in the case of Sarla Prabhakar Waghmare v. State of Maharashtra and Ors. 1990 (2) Recent Criminal Reports page 18 observed that:-

| “It is not every harassment or every type of
| cruelty that would attract Section 498A IPC –
| Beating and harassment must be to force the bride
| to commit suicide or to fulfill illegal demands.”

Similar view was taken by the Punjab & Haryana High Court in the case of Richhpal Kaur v. State of Haryana and Anr. reported as 1991 (2) Recent Criminal Reports 53 wherein it is observed that:-

| “Beating given to bride by husband and his
| relations due to domestic disputes and not on
| account of demand of dowry – Offence under Section
| 498A IPC not made out.”

Supreme Court in the case of Kans Raj v. State of Punjab & Haryana (2000) 5 SC 207 held that :-

| “Proximate or live link must be shown to exist
| between the course of conduct relating to cruelty
| or harassment in connection with dowry demand.”

24. In this case prosecution’s case revolves around the complaint and other material annexed with the charge sheet. Therefore keeping in view the objection of inserting the provision of Section 498-A IPC and the Law laid down, we may look to the complaint dated 9th July, 1999 which is reproduced as under:-

| To
|
| Deputy Commissioner of Police, South West
| District, Vasant Vihar, New Delhi Complaint Against
|
| 1. Mr. Manoj Khanna s/o Mr. Raj Kumar Khanna
|
| 2. Mr. Raj Kumar Khanna
|
| 3. Rohit Khanna s/o Mr. Raj Kumar Khanna
|
| w/o Raj Kumar Khanna
|
| all r/o 166, Aravali Apartments
|
| Alaknanda, New Delhi-110 019
|
|
| Sir,
|
| 1. This is to inform you that I was married to Mr.
| Manoj Khanna on 22.9.96. Both of us are practicing
| lawyers. Before marriage my husband said that he is
| having a good practice and earning about Rs.
| 25,000/- per month. My parents, my relatives and my
| friends gave lot of items as gifts on different
| occasions and also at our marriage, list of which
| is enclosed as Annexure ‘A’. My mother-in-law and
| relatives from husband’s side gave me few items as
| gifts, the details of which is also enclosed as
| Annexure ‘B’. Shockingly just within few days of my
| marriage, my husband, his brother and his parents
| all of them started taunting me for not bringing
| sufficient dowry as per their standard and
| expectations. My mother-in-law used to taunt me and
| use to say “that me and my family have fooled them
| and has played fraud on them since I had not
| brought enough dowry and said that since she
| belongs to Amritser and has known the Jat community
| very well and they are known for giving lot of
| dowry on their daughters wedding, but in my son’s
| case you people had played fraud on us. My son used
| to get lot of proposals of rich girls.” She used to
| use the filthiest abuses for me like “KUTTI,
| HARAMZADI, KAMINI, HAMARE PALLE PAD GAI HAI, HAMARE
| SATH DHOKHA HUA HAI, ASSEE TE SOCHYA SI KI JATTAN
| VICH BAHUT KUCHH DITA JANDA HAI.”
|
| 2. All of them in fact used to use abusive and
| filthiest of language to taunt me and harass me.
|
| On 23.9.96 I went back to my parents house along
| with my husband for Pheras and my parents gave me
| sweets and gifts for my in-laws (as stated in the
| Annexure-A). On my return to the house some of the
| relatives from in-laws side were also present in
| the house and when I showed the gifts and sweets to
| them, they made fun of me and taunted me along with
| my mother-in-law and brother-in-law that they are
| not happy with what I have got and said that all
| these things even a Peon can give to his daughter
| and look at your standard.
|
| 3. My agony continued with each occasion which
| followed month after month. On Karva Chauth i.e.
| 22.10.96 my father along with one of his cousin
| came to my house with lot of gifts, cloths, sweets
| and utensils as per the custom for my mother-in-
| law, brother-in-law, husband and father-in-law.
| Momemnt they left all of them started abusing me
| and taunting me stating that nothing is being given
| as per their standard and they had expected more
| than this. My mother-in-law also demanded that as
| per this custom gold is to be given on this
| occasion, but your parents have not given anything
| and I was aghast and shocked with their behavior
| and tried to ask my husband as to what is wrong in
| the gifts which have been given. Instead of
| replying he slapped me and I had no option but to
| suffer and sulk within myself which resulted in lot
| of mental trauma and physical tension which
| effected my health.
|
| 4. On the Diwali day i.e. 10.11.96 again my
| parents Along with my relatives came to our house
| with lot of gifts and sweets and my in-laws instead
| of welcoming them were rude and dry to them. After
| they left once again my brother-in-law Along with
| my mother-in-law showered the filthiest abuses and
| taunts and also did not give any food to me to eat
| on that day. On the next morning my mother-in-law
| gave stale food for me to eat. My father-in-law and
| husband also taunted me and said that I am a
| liability on them as there are no gains from me to
| them.
|
| 5. On the Lohri day i.e. 13.1.97 since my in-laws
| were not celebrating the same as there was a death
| in their family, my father Along with his friend
| visited the house during the day time and gave Rs.
| 5,000/- to my mother-in-law as a Sagun for this day
| and told her that since there was a death in the
| family he has not got any gifts or sweets. My
| mother-in-law at that time quietly took over the
| money, but moment they left all of them punched on
| me with the same taunts and also my father-in-law
| and my husband gave me beating with sticks. I had
| no option at that moment but to be quite and
| suffered silently and also did not tell anybody
| about the same since I wanted to save my marriage
| and probably thought that one day they will realize
| their mistake.
|
| 6. On 13th January’ 97 my mother-in-law in the
| night told me that since tomorrow is an auspicious
| day i.e. 14th January, I will remove your Chudda,
| ask your father to send same gifts and cloths for
| her. But I could not inform my father, so next
| morning I myself went to market and bought a suit
| for her along with certain Puja items and sweets
| but she didn’t like them and started abusing me and
| my parents for not giving her anything.
|
| 7. As a mark of respect I used to hand over all
| the items and gifts to my mother-in-law i.e.
| jewellery. Sarees and were being kept with my
| mother-in-law. Certain cloths of my daily use were
| with me and were Along with some piece of jewellery
| like 2 pairs of gold earrings and 2 rings for my
| daily use, but the keys of the almirah were always
| with my husband. It is worth mentioning here that
| the items like tape recorder, transistor, emergency
| light, certain sarees, 6 bed sheets, certain
| crockery items which were given to me on different
| occasions by my parents were handed over to my
| brother-in-law by me on instructions of my mother-
| in-law as she told me that these items will
| berequired at the time of the brother-in-law as she
| told me that these items will be required at the
| time of the brother-in-law’s marriage. My in-laws
| and my brother not only used to taunt me but all of
| them use to beat me on one pretext or the other. I
| was not allowed to touch anything of the house and
| also even if there were any phone calls for me
| which I used to attend, my brother-in-law in the
| filthiest language to use tell me “PHONE TERE BAAP
| KA NAHIN HAI, BILL TERE BAAP KE GHAR SE NAHIN JATA,
| JO PHONE use KARTI HIA.” He further started
| insulting everyone, who so ever use to call me like
| my friends, relatives and including my parents.
|
| 8. My brother-in-law was so cruel and a rowdy
| character that he is fact used to beat me with belt
| and a stick lying in the house. On my complaint my
| husband used to tell me that since I was not
| earning enough of money so therefore these problems
| would continue. In fact he was so unfair and cruel
| in making statements like if you meant to be happy
| in this house you earn about Rs. 20,000/- to Rs.
| 25,000/- a month an give it to them. Nobody would
| dare to say anything to you. He further used to
| give me example of his cousins who were married
| into rich families and he used to tell me that
| their wives are earning Rs. 30,000/-, 40,000/- per
| month and nobody dares to say anything to them and
| at the time of monetary needs their in-laws always
| help them, but look at your parents, they have not
| given anything to make you happy.
|
| 9. My father-in-law and on different occasions my
| mother-in-law and my husband used to tell me that
| my parents should sell of their immovable
| properties lying useless at my native place and
| should arrange to buy a flat for them in a good
| locality in Delhi. To save my matrimonial life I
| continued suffer silently and did not raise my
| voice and tried to adjust to the maximum. However
| they did nt mend their ways and continued to
| torture me in different ways including the way
| mentioned above. Because of this torture and the
| cruel behavior of my husband, brother-in-laws, and
| mother-in-law and father-in-law I suffered great
| physical and mental pain and agony. So much so that
| on number of occasions I had nervous breakdown and
| the Doctors attending to me categtorrically
| diagnosed that my indisposition was mainly became
| of mental tension. Apart from this on more than
| once occasion I suffered physical injury in my body
| on more than one occasions as mentioned above.
|
| 10. My brother-in-law, mother-in-law, also started
| taunting and insulting me at the relatives places
| whenever I used to go there with them and used to
| make fun of me. In the month of June’ 97 on once
| such occasion me my husband my mother-in-law and
| brother-in-law went to reside for a day at one of
| the relative in Faridabad. In the morning my
| husband and my brother-in-law had a fight for some
| reason and my husband became furious and asked me
| to leave the place along with him. I did same when
| my husband asked for the car keys from my brother-
| in-law & my brother-in-law and my mother-in-law
| told my husband in front of me “Iske baap ki gaadi
| nahin hai, gadi mein ghumna hai to Iske baap ko bol
| kam se kam thodi sharm kar le aur apni beti aur
| damad ke liye ek car to kharid de, itni hasiyat to
| hai uski.” That day I came back with my husband in
| scorching heat. Since we had to walk for about two
| kilometres to catch the bus for Delhi, I suffered
| from severe sunstroke and no body took care of me.
|
| 11. On 5.9.1997 it was a usual morning in the
| house as usual there was a fight between my husband
| and my father-in-law which I have seen right from
| the day one of my entering the house with regard to
| some joint property money. I told my husband that
| why he is fighting for money with his father, he
| should stand on his own feet. To this my husband
| told me that I will be like this only if you don’t
| like you can leave this house and slapped a
| newspaper on my face. I was slightly agitated on
| this and proved my father and asked him to come to
| the Court as I was wanted to tell him some thing
| since things were unbearable for me. I came outside
| the room and my mother-law-law started abusing me
| for nothing. To which I told that you are the one
| who has created all the problems because of her
| greediness of money. Moment I said this my brother-
| in-law started hitting me on my head with a belt in
| his hand and seeing my father-in-law and my husband
| silently watching this later on also joined my
| brother-in-law and also started hitting me with
| blows and legs. My husband then dragged me to my
| room and locked me inside my room, luckily the
| phone was in my room and I immediately called my
| father and asked him to come as soon as possible,
| Since I could not bear the humiliation and injuries
| I could hear outside the room filthiest abuses and
| languages being said by my mother-in-law an brother-
| in-law. “YEH DO TAKE KI AURAT APNE APP KO KYA
| SAMAJHATI HAI, IS KE BAAP NE KYA DIYA HAI, JO ISSE
| APNE GHAR MEIN RAKHE JO ISKE PAAS THA, WOH TO MIL
| GYA AB KYA RAKHA HAI IS MEIN DAFA KARO YAHAN SE.” I
| immediately phoned my father and asked him to come
| home directly. My father reached in 40 minutes. My
| husband in the meantime and opened the door and
| pushed me outside the house so I sat in the
| neighbours house. When I saw my father climbing up
| I called him and told him about the incidents and
| my father told me not to worry and pacified me and
| told me that he will talk to them. My brother-in-
| law had already left the house. My father-in-law
| and my husband apologised to my father for their
| act and requested him that you take her back for
| few days and my husband said that he would pick me
| up after 3-4 days. Despite their tortures and the
| cruel behavior I did not inform to anybody about
| this incident except my father for the sake of
| saving my marriage. However, I continued my efforts
| to talk my husband after this. But he always
| deferred the issue on one pretest or the other. Of
| late he even started saying that “I was their with
| him only on a trial basis since the trial period is
| over the file must be consigned to record room.” My
| husband always used to boost about his contacts in
| judiciary and other circles and used to say that
| nobody can do any harm to him, no matter what may
| come he will never continued this relationship.
| During my stay with my parents number of time I
| demanded my Shri Dhan from my husband, his brother
| and parents, but all of them point blank refused to
| return the same which was kept with them. All of
| them on different occasion had a strange demand
| that I should agree for divorce on mutual consent
| so that my husband could be remarried to a rich
| family, according to them there were lot of such
| offers, even after my marriage to him and my mother-
| in-law also told me that girls are available in
| plenty of numbers there is no dearth of girls for
| his boy. They can choose and get anything they want
| among the girls an there was no need of yours. She
| use to say “KUDIYAN DA KOI GHATA NAHIN, BATHERIAN
| MILDIYAN NE”.
|
| 12. On number of occasions I told my husband in
| the court premises that since I was not having
| sufficient income to support myself, so therefore
| he should pay me at least my pocket expenses and
| day to day expenses to maintain myself, but he
| always refused to do so. I through all quarters
| kept on making efforts and always hoped that some
| sense would prevail over them but thing went bad to
| worse. I may also inform your goodself that my
| relatives namely Mr. Ranjeet Brar, Mr. Joginder
| Mann, Mr. Gurdev Brar, My father and My younger
| brother and common friends namely Mrs. Anusuya
| Salwan etc. had made efforts to reconcile the issue
| but due to the greedy nature of the accused persons
| and their lust for dowry they had refused for any
| settlement.
|
| 13. That recently I have started receiving
| threatening telephonic calls from my in-laws or at
| their behest that in case I do not accept their
| illegal and unjustified demands me and my family
| will have to face dire consequences.
|
| Now I am left with no option but to lodge this
| complaint and I request your goodself to kindly
| book the accused persons and take appropriate
| actions by registering a case against Mr. Manoj
| Khanna, Mr. Raj Kumar Khanna, Rohit Khanna and Mrs.
| Nirmal Khanna for causing physical and mental
| torture for demanding dowry and for not returning
| my Shri Dhan and refusing to maintain me.
|
| New Delhi
|
| Dated: ; 9-7-99 Complainant
|
| Inderjeet Sidhu
|
| d/o Sh. P.S. Sidhu
|
| r/o G-109 Naraina Vihar,
|
| New Delhi – 110 028.
|

25. Though the complaint was not paragraphed but for the sake of convenience it has been paragraphed and numbered.

26. Perusal of the complaint reproduced above show that qua the petitioner allegations are general in nature. In paras 4 & 5 of the complaint allegation against the petitioner are of harassment. Mr. Mathur contended that these allegation cann’t constitute ‘cruelty’ having nexus with demand. The only other allegation which can relotely be said to be cruelty is in para 9 where she says petitioner along with other members of his family suggested that her parents should sell their immovable property lying useless at her native place and buy them a house in good locality in Delhi. Except the allegation in para 9 she has not attributed any cruelty against the petitioner linking with any kind of demand. In para 11 she says she left the house on 5th September, 1997 because of he fight had nothing to do with her. Reading of para 11 shows that petitioner has not been accused of any cruelty rather as per her own showing, the petitioner apologised to her father who came to take her. She left the matrimonial home on 5th September, 1997 and after almost two years she lodged the complaint on 9th July, 1999 involving all the members of her husband’s family.

27. We are in agreement with the contention of Mr. mathur that in order to attract the provisions of Section 498A it is not every harassment or every type of cruelty that would attract the provision of Section 498A. In this regard we are supported by the decision of Bombay High Court in Sarla Prabhakar Waghmare v. State of Maharashtra (1990) Crl.L.J. Page 47 (Bombay) and Rajanimal and Ors. v. State by D.S.P. CB CID 1993 Cr.L.J. Page 3019. Court observed that cruelty by itself without demand would not be sufficient to bring home the guilt under explanation (b) of Section 498A IPC. Harassment by itself is not a cruelty unless there is a demand of dowry and the cruelty is a consequence of that demand. Supreme Court in the case of State of Himachal Pradesh v. Nikku Ram and Ors. while interpreting the provisions of Section 304-B, 498-A, 306 and 324 IPC the Apex Court observed that harassment to constitute cruelty under Section 498A explanation (b) must have nexus with the demand of dowry and if this is missing the case will fall beyond the scope of Section 498A. Pre-condition for attracting the provisions of Section 498A is the demand and if the demand is missing and the cruelty is for the sake of giving torture to the woman without any nexus with the demand then such a cruelty will not be covered under explanation (b) under Section 498A IPC. It may be a cruelty under Hindu Marriage Act as held by Supreme Court in the case of Shobha Rani v. Madhukar Reddi . Apex Court observed that cruelty under Section 498A IPC is distinct from the cruelty under the Hindu Marriage Act which entitle the wife to get a decree for dissolution of marriage.

28. Mr. D.C. Mathur also challenged the date of recording the supplementary statement. According to him it was not recorded on 10th July, 1999. It was ante-dated by the police in order to cover up the illegal raid conducted at the instance of the complainant thereby removing all the articles even belonging to petitioner’s family. In her complaint dated 9.7.99 which was a well drafted complaint, she nowhere alleged that her “stridhan” was lying in the house of the petitioner. But police under presumption conducted the raid on 12.7.1999 and arrested petitioner and his wife. Therefore, to cover up the lapse police recorded supplementary statement on 10.9.1999 but changed the figure of 9 to 7 making it appear 10.7.1999. The supplementary statement even does not implicate the petitioner under Section 406 or under Section 498A IPC.

We have scrutinised the original file. There appears to be overwriting on figure 9. It is changed to 7. Mr. Mathur urged that recording of the supplementary statement was after thought to cover up the illegal act committed by police. We would not like to comment on the merits of the same as it may effect the case before the trial court.

29. Admittedly neither the compliant nor the supplementary statement show any entrustment of any property to the petitioner. In the absence of entrustment question of criminal breach does not arise. Since there was no entrustment of any articles to the petitioner, therefore chances of ultimate conviction on this count are bleak. No useful purpose is going to be served by allowing the proceedings under Section 406 IPC to continue against this petitioner. In support reference can be made to the observations of Supreme Court in the case of Alpic Finance Ltd. v. P. Sadasivan and Anr. 2001 (1) AD (Cr.) SC 467, Apex Court while dealing with the inherent power of the High Court to quash the complaint and proceedings observed:-

| “Having regard to the facts and circumstances, it
| is difficult to discern an element of deception in
| the whole transaction, whereas it is palpably
| evident that the appellant had an oblique motive of
| causing harassment to the respondents by seizing
| the entire articles through magisterial
| proceedings. We are of the view that the learned
| judge was perfectly justified in quashing the
| proceedings and we are disinclined to interfere in
| such matters.”

Reference can also be made to the observations of Punjab & Haryana High Court in the case of Lakhwider Singh v. State of Punjab 2000 Crl.L.J. 4751, where it is held that an FIR is liable to be quashed if it does not contain specific allegations of either entrustment or of cruelty. Courts have consistently put an end to criminal proceedings at the initial stage, at the summoning stage and even after charges have been framed which are abuse of the process of Court. High Court has the inherent power to quash proceedings and to pass such orders as are necessary to prevent abuse of the process of the Court or otherwise to secure ends of justice. It is not disputed that such powers should be exercised only as per guidelines laid down by the Supreme Court in the case of Chaudhry Bhajan Lal (Supra). Supreme Court in the case of K. Ramakrishna and Ors. v. State of Bihar and Anr. observed that High Court has inherent power to quash proceedings to secure ends of justice to protect abuse of the process of law. If allegations in the FIR do not constitute an offence, then FIR can be quashed.

30. Seizing of letters, greeting cards, diary and photographs create doubt on the bonafide of the police action. We fail to understand how these could form part of “Stridhan”. Decidedly police acted in haste in seizing such documents. No explanation has been given why these documents were seized.

For the foregoing reasons we hold that no offence under Section 406 IPC in the facts of this case qua the petitioner prima facia has been made out. Accordingly FIR and proceedings emanating there from under Section 406 IPC are ordered to be quashed. But at this stage we are not inclined to quash the FIR under Section 498A IPC. It would be for the Trial Court to consider whether charge is made out or not?

With these observations the petition stands disposed. Any observation made herinabove will have no bearing on the merits of the case before the Trial Court.

Lesbians are becoming father(s) / claiming to be father(s) of some other man’s Biological child / children …. Who has the legal and moral right of custody and guardianship of the child ?

“…..I’ve never again felt attracted to a man. I had had sex with my husband because it was a done thing after marriage. But what I got from my lesbian relationship was care, understanding, love, affection and sexual satisfaction,” Alka says…….”
Question : Lesbians are becoming father(s) / claiming to be father(s) of some other man’s Biological child / children …. Who has the legal and moral right of custody and guardianship of the child  ? the lesbian (self proclaimed) father ? or the biological father ? What are the social responsibilities here ?
 

Lesbians on the Rise ! The New India for all of us !!

 

A lesbian, and a proud father

Priyanka Dasgupta, TNN Aug 5, 2012, 12.49AM IST
KOLKATA: When 16-year-old Raunak (name changed) wants to feel pampered, the first thing he does is call up his papa. “Itna toh aap mere liye kar hi sakte ho. Papa hone ke waastey (This is something you ought to do for me. After all, you are my dad),” he says with an impish smile. It would be the usual father-son scene in any home but the only difference here is that Raunak calls her papa, Sonalidi.

“If I start addressing someone by a particular name, I can’t change it. My parents have parted ways, but I continue to call my biological father ‘Pa’. My mother married Sonalidi on March 18, 2011, at Lake Kalibari. Sonalidi is my papa and I share some of my most intimate secrets with her. Even my mother doesn’t know some of these secrets,” says Raunak, who is working at a call centre before joining Class XI.

Children like Raunak are no longer exceptions in same-sex relationships. More and more lesbian couples want to be parents.

Sandy, who is in a lesbian relationship with Roshni (name changed), says that she loves her partner’s son like her own. Sushmita, an athlete from Serampore, has been in a relationship with Mahie (name changed) who is now pregnant. Once the baby is born, Mahie plans to dissolve her marriage and move in with Sushmita. As Sonali, Sandy and Sushmita happily slip into father-figure roles, they are also inspiring many others within the lesbian community to come out in the open.

While the law might not recognize such marriages, there is no dearth of curiosity over how a woman who is married and is a mother can then live happily ever after as a lesbian.

The revelation

Sitting in her posh flat in Teghoria, north Kolkata, Alka Kedwal recalls how she got clarity about her own sexuality. “Being a Rajput, it was important for my family to get me married to the first ‘rishta’ that came for me. I was only 18. My father was an IAF pilot and my mother a gynaecologist and I came from an affluent family. But my in-laws were very conservative. They insisted that I cover my face with my pallu and wear all the heavy gold jewellery all the time. I felt imprisoned. For the first two to three years, I enjoyed sex with my husband. Raunak was born. But my in-laws never accepted him because he was born very weak. That hurt and with the constant friction with my mother-in-law I could no longer live with them. My husband and I moved out to Noida with the kid.”

She took up a job and once, while vacationing in Mumbai, met a girl. The chemistry was electric, she recalls. She found what she was missing all these years. When the girl came to Delhi for two days, Alka insisted that she stay back for three months at her expense. The two got close, introduced each other as sisters, and opened a coffee shop in Mumbai. “Initially, I was perplexed at being attracted to a girl. I thought there was something wrong with me. But then, when I met many such girls in same-sex relationships, I realized that I was a late-bloomer. Eight years after being in love, I popped the question of getting physically close. She agreed.”

It didn’t last long because Alka caught her partner two-timing with another girl and also a guy. “But I’ve never again felt attracted to a man. I had had sex with my husband because it was a done thing after marriage. But what I got from my lesbian relationship was care, understanding, love, affection and sexual satisfaction,” Alka says.

Fighting the taboo

In Sandy’s case, it was a chance encounter on a social networking site that got her close to her partner in Varanasi. “Roshni has a 12-year-old son but that hasn’t changed anything about our relationship. As a teenager, she was attracted towards girls but nobody in her family would ever respect that choice. She was married off and had a conjugal life with her husband. But when she told her in-laws that she no more liked her husband’s touch, they were baffled. For four years, she compromised till she got pregnant accidentally. A son was born but she knew that leading a conjugal life was not possible for her. She has sympathy for her husband but no attachment. When I went to meet her, I realized that I could not separate her from her son. So, I have asked her to take her time and wait for her husband to grant divorce. Then the three of us will move in,” says Sandy.

Roshni told TOI from Varanasi: “I have been slightly confused about my sexual preference. I think, I am a born lesbian but since my society never allowed me to explore it, I thought there was something wrong with my choice. I was forced to get married and had a baby. But I realized that I never enjoyed sex with my husband. Finally, I told him that I couldn’t continue this way. He guesses that I could be a lesbian, but I haven’t come out in the open yet. I want a divorce but he is not relenting. My son likes my partner and I am hoping that with time, he will understand the relationship I share with Sandy.”

Playing father

Sushmita Mukherjee, however, is in a much more critical stage because her partner is four months pregnant. “I was always tomboyish and never got attracted to men. When I attended the national coaching camps, I would get drawn to girls. I found that same-sex relationships were common among our senior athletes. That ruled out any guilt,” Sushmita said.

Things took a dramatic turn at a party in Barasat. “A man, who had kept his marriage a secret for long, decided to introduce his wife to us that night. Intriguingly, his wife (Mahie) requested me to stay back and we shared a room. I remember that night distinctly. It was June 20, 2008, and I was pleasantly surprised when she came close to me at night and held me in a tight embrace and smooched me. I was shy but I realized the flurry of emotions and we exchanged numbers,” Sushmita recalls.

Their relationship has stood the test of time. “Her husband came to know about us and threatened me. We went through hell. On May 4, 2012, she called up to say that he had forced himself on him and got her pregnant. I was hurt but I could not ask her to go for an abortion. Now, I am waiting for the child to be born. I want to tell the world that I am on my way to becoming a proud dad. As soon as the baby is born and Mahie gets a divorce, we will move into our flat,” Sushmita said.

She realizes that Mahie is most likely a bisexual. “It’s not physical satisfaction that’s binds us. She has sacrificed a lot for me and even sold off her jewellery when I needed money. Our relationship is beyond carnal desires. But it’s a fact that most Indian women who are not satisfied in their marriage emotionally and physically often develop lesbian relationships,” Sushmita said.

And how is the ego of the Indian male dealing with it? “India is a land of hypocrites where many husbands would prefer their wives to have a lesbian relationship rather than an affair with another man. Maybe it hurts their male pride less,” laughed Sonali.

 

source

http://articles.timesofindia.indiatimes.com/2012-08-05/kolkata/33048558_1_lesbian-relationship-lesbian-couples-papa/2

 

Bhagat Singh vs Chief Information Commissioner … Delhi High court – 3 Dec 2007

Wife files a dowry case stating that she was forced to give Rs 10 lakhs as dowry. Husband wishes to prove his innocence and makes Tax Evasion Petition and an RTI application seeking info, following the TEP. IT Department refuses information on Husband’s RTI. Husband proceeds on appeal after appeal for the next two years and wins his case !!
 

Delhi High Court

Bhagat Singh vs Chief Information Commissioner … on 3 December, 2007

Equivalent citations: 146 (2008) DLT 385

Author: S R Bhat

Bench: S R Bhat

JUDGMENT

S. Ravindra Bhat, J.

1. The Petitioner in the present writ proceeding approaches this Court seeking partial quashing of an order of the Central Information Commission and also for a direction from this Court that the information sought by him under the Right to Information Act, 2005 (hereinafter referred to as ‘the Act’) should be supplied with immediate effect.

2. The facts relevant to decide the case are as follows. The petitioner was married in 2000 to Smt. Saroj Nirmal. In November 2000 she filed a criminal complaint alleging that she had spent/paid as dowry an amount of Rs. Ten Lakhs. Alleging that these claims were false, the Petitioner, with a view to defend the criminal prosecution launched against him, approached the Income Tax Department with a tax evasion petition (TEP) dated 24.09.2003. Thereafter, in 2004 the Income Tax Department summoned the Petitioner’s wife to present her case before them. Meanwhile, the Petitioner made repeated requests to the Director of Income Tax (Investigation) to know the status of the hearing and TEP proceedings. On failing to get a response from the second and third Respondents, he moved an application under the Act in November, 2005. He requested for the following information:

(i) Fate of Petitioner’s complaint (tax evasion petition) dated 24.09.2003

(ii) What is the other source of income of petitioner’s wife Smt. Saroj Nimal than from teaching as a primary teacher in a private school ‘

iii)What action the Department had taken against Smt. Saroj Nimal after issuing a notice u/s 131 of the Income ‘tax Act, 1961, pursuant to the said Tax Evasion Petition.

3. The application was rejected by the second Respondent (the Public Information Officer, designated under the Act by the Income Tax department) on 10th January 2006 under Section 8(1) of the Act, by reasoning that the information sought was personal in nature, relating to dowry and did not further public interest. The relevant portion of this provision is extracted below:

Exemption from Disclosure of Information:

| (1) Notwithstanding anything contained in this Act,
| there shall be no obligation to give any citizen.
|
| XXXXXXXXXXXXX
|
| (j) information which relates to personal
| information, the disclosure of which has no
| relationship to any public activity or interest or
| which would cause un- warranted invasion of the
| privacy of the individual unless the Central Public
| Information Officer or the State Public Information
| Officer or the Appellate Authority, as the case may
| be, is satisfied that the larger public interest
| justices the disclosure of such information.

4. The petitioner, thereafter, appealed to third Respondent- the Appellate Authority which too rejected his request to access the information.

While doing so, not only did he reiterate section 8(1)(j) as a ground for rejection but also observed that the information sought could also be denied under Section 8(1)(h), which is reproduced below:

| (h) information which would impede the process of
| investigation or apprehension or prosecution of
| offenders

5. Against the order of the Appellate Authority, the petitioner filed a second Appeal on 1st March, 2006, before the Respondent No. 1, the Central Information Commission (hereafter ‘the CIC’) praying for setting aside the Orders of Respondent No. 2 and 3. The petitioner sought the following reliefs:

a) issue directions to Respondent No. 2 and 3 to furnish information,

b) to order an inquiry against Respondent’s No. 2 and 3 for not implementing the Right to Information Act properly

c) to impose penalties and disciplinary action against Respondent No. 2 and 3 under Section 20 of the RTI Act and

d) to award cost of proceedings to be recovered from Respondent No. 2and3.

6. The CIC, on 8th May 2006 allowed the second appeal and set aside the rejection of information, and the exemption Clause 8(1) (j) cited by Respondents No. 2and3.

The CIC further held that-

| as the investigation on TEP has been conducted by
| DIT (Inv), the relevant report is the outcome of
| public action which needs to be disclosed. This,
| therefore, cannot be exempted u/s 8(1) (j) as
| interpreted by the appellate authority.
| Accordingly, DIT (Inv) is directed to disclose the
| report as per the provision u/s 10(1) and (2),
| after the entire process of investigation and tax
| recovery, if any, is complete in every respect.

7. The Petitioner contends that the first Respondent was correct in allowing disclosure of information, by holding that Sections 8(1)(j) did not justify withholding of the said information, but incorrectly applied Sec 8(1) (h) of the Act. He submits that the disclosure of the said information could not in any way impede the investigation process and that the Respondents have not given any reasons as to how such disclosure would hamper investigation. On the other hand, he contends, the information would only help in absolving himself from the false prosecution and criminal harassment. Moreover, he contends that under Section 10 of the Act non-exempt information could have been provided to him after severing it from the exempt information. He in fact applied to the second and third respondent under the aforesaid provision but was informed that the matter was still under investigation.

8. In August 2006 the petitioner filed a contempt petition before the CIC for non compliance of order dated 8th May 2006. Pursuant to this, the CIC asked the second and third respondent to take necessary action. The Petitioner also wrote a letter to the Chief Information Commissioner, seeking his indulgence for compliance of impugned order dated 8th May 2006. Pursuant to this, the first Respondent issued a notice to the other Respondents asking for comments with respect to non-compliance of the order and to show cause as to why a penalty should not be imposed as per Section 20 of the Act. On 15th February, 2007, the Petitioner again appealed to the first Respondent requesting him to impose penalties on the concerned officer of Income Tax Department (Investigation) for non compliance of the order of the Central Information Commission.

9. The petitioner in this writ petition requests this Court to partially quash the order of the first Respondent dated 8th May 2006 in so far as it directs disclosure after the entire process of investigation and tax recovery is completed; to direct the other respondents to forthwith supply the information sought; to direct the CIC to impose penalties under Section 20 and to compensate him for damages suffered due to non supply of information. It was urged that the CIC, after appreciating that there was no merit in the plea regarding applicability of Section 8(1)(h), and being satisfied, should have not imposed the condition regarding completion of proceedings, which could take years. Such power to restrict the access to information did not exist under the Act.

10. The second and third respondents, pursuant to an order of this Court aver that the Petitioner misconstrued letters sent by the Income Tax officer and the Director General of Income Tax in relation to the fact that the investigations are complete. They submit that although there was a preliminary investigation undertaken by the Income Tax officer, Delhi and a report was submitted pursuant to that, the Assessing officer has issued notices under section 148 of the Income Tax Act, 1961 and the investigation and procedures under the assessing Officer are yet to be completed. Learned Counsel Sonia Mathur, appearing on behalf of the Respondents submitted that, as per the directions of the CIC, the information sought would be supplied after 31st March 2008, after completion of investigation and recovery.

11. The Universal Declaration of Human Rights, adopted by the United Nations in 1948, assures, by Article 19, everyone the right, ‘to seek, receive and impart information and ideas through any media, regardless of frontiers’. In Secretary Ministry of Information and Broadcasting, Govt. of India and Orsv. Cricket Association of Bengal and Ors. 1995 (2) SCC 161] the Supreme Court remarked about this right in the following terms:

| The right to freedom of speech and expression
| includes the right to receive and impart
| information. For ensuring the free speech right of
| the citizens of this country, it is necessary that
| the citizens have the benefit of plurality of views
| and a range of opinions on all public issues. A
| successful democracy posits an ‘aware’ citizenry.
| Diversity of opinions, views, ideas and ideologies
| is essential to enable the citizens to arrive at
| informed judgment on all issues touching them.

This right, to information, was explicitly held to be a fundamental right under Article 19(1)(a) of the Constitution of India for the first time by Justice KK Mathew in State of UP v. Raj Narain, . This view was followed by the Supreme Court on a number of decisions and after public demand, the Right to Information Act, 2005 was enacted and brought into force.

12. The Act is an effectuation of the right to freedom of speech and expression. In an increasingly knowledge based society, information and access to information holds the key to resources, benefits, and distribution of power. Information, more than any other element, is of critical importance in a participatory democracy. By one fell stroke, under the Act, the maze of procedures and official barriers that had previously impeded information, has been swept aside. The citizen and information seekers have, subject to a few exceptions, an overriding right to be given information on matters in the possession of the state and public agencies that are covered by the Act. As is reflected in its preambular paragraphs, the enactment seeks to promote transparency, arrest corruption and to hold the Government and its instrumentalities accountable to the governed. This spirit of the Act must be borne in mind while construing the provisions contained therein.

13. Access to information, under Section 3 of the Act, is the rule and exemptions under Section 8, the exception. Section 8 being a restriction on this fundamental right, must therefore is to be strictly construed. It should not be interpreted in manner as to shadow the very right itself. Under Section 8, exemption from releasing information is granted if it would impede the process of investigation or the prosecution of the offenders. It is apparent that the mere existence of an investigation process cannot be a ground for refusal of the information; the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. Sans this consideration, Section 8(1)(h) and other such provisions would become the haven for dodging demands for information.

14. A rights based enactment is akin to a welfare measure, like the Act, should receive a liberal interpretation. The contextual background and history of the Act is such that the exemptions, outlined in Section 8, relieving the authorities from the obligation to provide information, constitute restrictions on the exercise of the rights provided by it. Therefore, such exemption provisions have to be construed in their terms; there is some authority supporting this view ( See Nathi Devi v. Radha Devi Gupta 2005 (2) SCC 201; B. R. Kapoor v. State of Tamil Nadu V. Tulasamma v. Sesha Reddy . Adopting a different approach would result in narrowing the rights and approving a judicially mandated class of restriction on the rights under the Act, which is unwarranted.

14. In the present case, the orders of the three respondents do not reflect any reasons, why the investigation process would be hampered. The direction of the CIC shows is that the information needs to be released only after the investigation and recovery in complete. Facially, the order supports the petitioner’s contention that the claim for exemption made by respondent Nos. 2 and 3 are untenable. Section 8(1)(j) relates only to investigation and prosecution and not to recovery. Recovery in tax matters, in the usual circumstances is a time consuming affair, and to withhold information till that eventuality, after the entire proceedings, despite the ruling that investigations are not hampered by information disclosure, is illogical. The petitioner’s grouse against the condition imposed by the CIC is all the more valid since he claims it to be of immense relevance, to defend himself in criminal proceedings. The second and third respondents have not purported to be aggrieved by the order of CIC as far as it directs disclosure of materials; nor have they sought for its review on the ground that the CIC was misled and its reasoning flawed. Therefore, it is too late for them to contend that the impugned order contains an erroneous appreciation of facts. The materials available with them and forming the basis of notice under the Income Tax act is what has to be disclosed to the petitioner, i.e the information seeker.

15. As to the issue of whether the investigation has been complete or not, I think that the authorities have not applied their mind about the nature of information sought. As is submitted by the Petitioner, he merely seeks access to the preliminary reports investigation pursuant to which notices under Sections 131, 143(2), 148 of the Income Tax have been issued and not as to the outcome of the investigation and reassessment carried on by the Assessing Officer. As held in the preceding part of the judgment, without a disclosure as to how the investigation process would be hampered by sharing the materials collected till the notices were issued to the assesse, the respondents could not have rejected the request for granting information. The CIC, even after overruling the objection, should not have imposed the condition that information could be disclosed only after recovery was made.

16. In view of the foregoing discussion the order of the CIC dated 8th May 2006 in so far as it withholds information until tax recovery orders are made, is set aside. The second and third respondents are directed to release the information sought, on the basis of the materials available and collected with them, within two weeks.

17. This Court takes a serious note of the two year delay in releasing information, the lack of adequate reasoning in the orders of the Public Information Officer and the Appellate Authority and the lack of application of mind in relation to the nature of information sought. The materials on record clearly show the lackadaisical approach of the second and third respondent in releasing the information sought. However, the Petitioner has not been able to demonstrate that they malafidely denied the information sought. Therefore, a direction to the Central Information Commission to initiate action under Section 20 of the Act, cannot be issued.

18. The writ petition is allowed in the above terms. In the peculiar circumstances of the cases, there shall be no order on costs.

source :

Indiankanoon.org

Roughly 65 years ago Nehru spoke of a Tryst with Destiny. That day, many Indians looked up the dictionary for meaning of “Tryst”. Now I am searching for the meaning of my destiny !!

 

Roughly 65 years ago Nehru spoke of a Tryst with Destiny. That day, many Indians looked up the dictionary for meaning of “Tryst”. Now I am searching for the meaning of my destiny !!

Happy Independence day to all !!

 

I take this occasion to post one of the illustrious cases on Right to Information MUCH BEFORE the now famous RTI Act ever came into being …. the famous case of Raj Narayan Vs Smt. Indira Gandhi !!!!

the opposition averred that smt. Indira Gandhi had used the police for her election campaign and subsequent victory. It was averred that secret instructions were given to the police to act like party members , canvass , intimidate …whatever…. The Blue book of instructions to the police was sought by Raj Narayan, her opponent … The govt refused to give the blue book in the name of “privilege” The matter went to the Allahabad high court and then the Supreme court of India…. The supreme court instructed release of information !!

 

———– State Of U.P vs Raj Narain & Ors on 24 January, 1975 ————-

Supreme Court of India

State Of U.P vs Raj Narain & Ors on 24 January, 1975

Equivalent citations: 1975 AIR 865, 1975 SCR (3) 333

Bench: Ray, A.N.

PETITIONER:

STATE OF U.P.

Vs.

RESPONDENT:

RAJ NARAIN & ORS.

DATE OF JUDGMENT24/01/1975

BENCH:

RAY, A.N. (CJ)

BENCH:

RAY, A.N. (CJ)

MATHEW, KUTTYIL KURIEN

ALAGIRISWAMI, A.

SARKARIA, RANJIT SINGH

UNTWALIA, N.L.

CITATION:

1975 AIR 865 1975 SCR (3) 333

1975 SCC (4) 428

CITATOR INFO :

MV 1982 SC 149 (452,454,1184)

RF 1988 SC 782 (43,44)

RF 1989 SC 144 (4,5)

ACT:

Indian Evidence Act, ss. 123 and 162–Scope of.

HEADNOTE:

Section 123 of the Evidence Act states that no one shall be permitted to give any evidence derived from unpublished official records relating to any affair of 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.

Section 162 provides that when a witness brings to Court a document in pursuance, of summons and then raises an objection to its production or admissibility the Court has to determine the validity of the objection to the production or admissibility and for so doing the Court can inspect the document except in the cage of a document re- lating to the affairs of State or take such other evidence as may be necessary to determine its admissibility.

In connection with his election petition the respondent made an application before the High Court for summoning the Secretary, General Administration and Chief Secretary of the State Government and the head clerk of the office of the Superintendent of Police of the District for the production of the Blue Book entitled “rules and instructions for the protection of the Prime Minister when on tour or in. travel”, and certain other correspondence exchanged between the Government of India and the State Government in that connection. The Home Secretary deputed one of his officers to go to the court alongwith the documents but with clear instructions that he should claim privilege in respect of those documents under s. 123 of Evidence Act. No affidavit of the Minister concerned or the Head of the Department was, however, filed, at that time. In the course of examination the witness claimed privilege in respect of the documents. The election petitioner thereupon contended that the Head of the Department had not filed an affidavit claiming privilege and that the documents did not relate to the affairs of the State. The documents in respect of which privilege was claimed were sealed and kept in the custody of the Court. When the matter came up for hearing, however, the Home Secretary to the State Government, filed an affidavit claiming privilege for the documents.

In respect of the documents summoned from the office of the Superintendent of Police an affidavit claiming privilege under s. 123 of the Evidence Act was filed by the Superintendent of Police.

The High Court held that

(i) under s. 123 of the Evidence Act the Minister or the, Head of the Department concerned must file an affidavit in the first instance and since no such affidavit had been filed in the first instance the privilege was lost and the affidavit filed later claiming privilege was of no avail,

(ii) that it would decide the question of privilege only when permission to produce a document had been withheld under s. 123;

(iii) that the Blue Book in respect of which privilege was claimed was not an unpublished official record relating to the affairs of the State because the Union Government had referred to a portion of it in one of its affidavits and a member of Parliament had referred to a particular rule of the Blue Book in Parliament;

(iv) that no reasons were given why the disclosure of the documents would be against public interest; and

(v) that it had power to inspect the documents in respect of which privilege was claimed.

Allowing the appeal to this Court, (per A. N. Ray, C.J., A. Alagiriswami, R..S. Sarkaria and N. L. Untwalia, JJ) : HELD : The foundation of the law behind ss. 123 and 162 of the Evidence Act is the same as in English Law. It is that injury to public interest is the reason for the exclusion from disclosure of documents whose contents, if disclosed, would injure public and national interest. Public interest which demands that evidence be withheld is to be weighed against the public interest in the administration of justice that courts should have the fullest possible access to all relevant materials. When public interest outweighs the latter, the evidence cannot be admitted. The Court will proprio motu exclude evidence, the production of which is contrary to public interest. It is in public interest that confidentiality shall be safeguarded. Confidentiality is not a head of privilege. it is not that the contents contain material which it would be damaging to the national interest to divulge but rather that the documents would be of a class which demand protection.

Evidence is admissible and should be received by the Court to which it is tendered unless there is a legal reason for its rejection. Admissibility presupposes relevancy. Admissibility also denotes the absence of any applicable rule of exclusion. Facts should not be received in evidence unless they are both relevant and admissible.

The principal rules of exclusion under which evidence becomes inadmissible are two fold : (1) Evidence of relevant facts is inadmissible when its reception offends against public policy or a particular rule of law. A party is sometimes estopped from proving facts and these facts are therefore inadmissible; (2) Relevant facts are, subject to recognised exceptions, inadmissible unless they are proved by the best or the prescribed evidence. Secrets of State. State papers, confidential official documents and communications between the Government and its officers or between such officers are privileged from production on the ground of public policy or as being detrimental to the public interest or service. [343H; 344A-C]

Conway v. Rimmer & Anr. [1968] 1 A.E.R. 874 & [1968] A.C. 910; Duncan v. Cammell Laird & Co. [1942] A.C. 642and Rogers v. Home Secretary [1973] A.C. 388, referred to.

(1) It is now the well settled practice in our country that an objection is raised by an affidavit affirmed by the Head of the Department. The Court may also require a Minister to affirm an affidavit. Where no affidavit was filed, an affidavit could be directed to be filed later on. [349B]

(2) It is for the Court to decide whether the affidavit is clear in regard to objection about the nature of documents. The Court can direct further affidavit in that behalf. If the Court is satisfied with the affidavits, the Court will refuse disclosure. If the Court, in spite of the affidavit, wishes to inspect the document the Court may do so. [349E] Grosvenor Hotel, London [1963] 3 A.E.R. 426, referred to.

(3) In the present case it cannot be said that the Blue Book is a published document. Any publication of parts of the Blue Book which may be described as an innocuous part of the document will not render the entire document a published document. [349H]

(4) In the instant case it is apparent that the affidavit affirmed by the Chief Secretary is an affidavit objecting to the production of the documents. The oral evidence of the witness as well as the aforesaid affidavit shows that objection was taken at the first instance. [349D]

(5) If the Court is satisfied with the affidavit evidence that the document should be protected in public interest from production the matter ends there. If the Court would yet like to satisfy itself, the Court may see the document. Objection as to production as well as admissibility contemplated in s. 162 of the Evidence Act is decided by the Court in the enquiry. [349B-C]

State of Punjab v. Sodhi Sukhdev Singh [1961] 2 S.C.R. 371, followed.

Per Mathew, J. (Concurring) :
====================================
1(a) The foundation of the so called privilege is that the information cannot be disclosed without injury to public interest and not that the document is confidential or official, which alone is no reason for its non-production. [353C-D]

Asiatic Petroleum Company Ltd. v. Anglo Persian Oil Co. [1916] 1 K.B. 822 at 830; Conway v. Rimmer [1968] 1 All, E.R. 874 at 899 and Duncan v. Cammell Lavid & Co. [1942] A.C. 624, referred to.

(b) A privilege normally belongs to the parties and can be waived. But where a fact is excluded from evidence by considerations of public policy, there is no power to waive in the parties. [353F-G]

Murlidhar Agarwal v. State of U.P. [1974] 2 S.C.C. 472 at 483, referred to.

In the instant case the mere fact that the witness brought the documents to Court in pursuance to the summons and did not file a proper affidavit would not mean that the right to object to any evidence derived from an unpublished official record relating to affairs of State had been for ever waived and as no affidavit had been filed it might be that a legitimate inference could be made that the Minister or the Head of the Department concerned permitted the production of the document or evidence being given derived from it, if there was no other circumstance. If the statement made by the witness that the document was a secret one and that he had no been permitted by the Head of the Department to produce it, was not really an objection to the production of the document which could be taken cognizance of by the Court under s. 162 of the Evidence Act, it was an intimation to the Court that the Head of the Department had not permitted the production of the document in Court or evidence derived from it being given. Whatever else the statement might indicate, it does not indicate that the Head of the Department had permitted the production or disclosure of the document. [355D-F]

(2) Section 123 enjoins upon the Court the duty to see that no one is permitted to give any evidence derived from unpublished official records relating to affairs of State unless permitted by the officer at the Head of the Department. The Court therefore, had a duty not to permit evidence derived from a secret document being given. Before the arguments were finally concluded and before the Court decided the question the Head of the Department filed an affidavit objecting to the production of the document and stating that the document in question related to secret affairs of State, and the Court-should have considered the validity of that objection under s. 162 of the Evidence Act. [355G-A; 356A-B]

Crompton Ltd. v. Custom & Excise Commrs. [1972] 2 Q.B. 102 at 134 and Conway v. Rimmar & Anr. [1968] A.C. 910, referred to.

(3) There is no substance in the argument that since the Blue Book had been published in parts, it must be deemed to have been published as a whole, and, therefore, the document could not be regarded as an unpublished official record relating to affairs of, State. If some parts of the document which are innocuous have been published, it does not follow that the whole document has been published. Since the High Court did not inspect the Blue Book, the statement by the Court that the materials contained in the file produced by the Superintendent of Police were taken from the Blue Book was not warranted. [362B-C; E]

(4) The mere label given to a document by the executive is not conclusive in respect of the question whether it relates to affairs of State or not. If the disclosure of the contents of the document would not damage public interest the executive cannot label it in such a manner as to bring it within the class of documents which are normally entitled to protection. [362E-F]

5(a) It is difficult to see how the Court can find, without conducting an enquiry as regards the possible effect of the disclosure of the document upon public interest, that a document is one relating to affairs of State as, ex hypothesis, a document can relate to affairs of State only if its disclosure will injure public interest. But in cases where the documents do not belong to the noxious class and yet their disclosure would be injurious to public interest, the inquiry to be conducted under s. 162 is an enquiry into the validity of the objection that the document is an un- published official record relating to affairs of State and. therefore, permission to give evidence derived from it is declined. [357H; 358A-B]

(b) Section 162 visualises an inquiry into that objection and empowers the Court to take evidence for deciding whether the objection is valid. The Court, therefore, has to consider two things : (i) whether the document relates to secret affairs of State; and (ii) whether the refusal to permit evidence derived from it being given was in the public interest. [358C]

(c) Even though the Head of the Department refused to grant permission, it was open to the Court to go into the question after examining the document and find out whether, the disclosure of the document would be injurious to public interest and the expression “as be thinks fit” in the latter part of s. 123 need not deter the Court from deciding the question afresh as s. 162 authorities the Court to determine the validity of the objection finally. [358F] State of Punjab v. Sodhi Sukhdev Singh [1961] 2 S.C.R. 371, followed.

(d) When a question of national security is involved the Court may not be the proper forum to weigh the matter and that is the reason why a Minister’s certificate is taken as conclusive. As the executive is solely responsible for national security, including foreign relations, no other organ could judge so well of such matters. Therefore, documents in relation to these matters might fall into a class which per se might require protection. [359B-C]

(e) But the executive is not the organ solely responsible for public interest. There are other elements. One such element is the administration of justice. The claim of the executive to exclude evidence is more likely to operate to subserve a partial interest, viewed exclusively from a narrow departmental angle. It is impossible for it to see or give equal weight to another matter, namely, that justice should be done and seen to be done. When there are more aspects of public interest to be considered the Court will, with reference to the pending litigation, be in a better position to decide where the weight of public interest predominates. It seems reasonable to assume that a Court is better qualified than the Minister to measure the importance of the public interest in the case before it. Once con- siderations of national security are left out. there are few matters of _public interest which cannot safely be discussed in public. [139C-D; F-G]

Arguments for the Appellant
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The principle behind s. 123 is the overriding and paramount character of public interest and injury to public interest is the sole foundation of the section. In cases where the document in question obviously relates to affairs of State it is the duty of the Court to prevent the production and admission of the document in evidence suo motu to safeguard public interest Matters of State referred to in the second clause of s. 162 are identical with affairs of State mentioned in s. 123. An objection against the production of document should be raised in the form of an affidavit by the Minister or the Secretary. When an affidavit was made by the Secretary, the Court may, in a proper case, require the affidavit of the Minister. If the affidavit is found unsatisfactory a further affidavit may be called, and in a proper case the person making the affidavit should be summoned to face an examination to the relevant point. Here too this Court did not consider that any party can raise the objection and it is the duty of the Court to act suo moru in cases where the documents in question obviously relate to affairs of State. Therefore, the Court cannot hold an inquiry into the possible injury to public interest. That is a matter for the authority to decide. But the Court is bound to hold a preliminary enquiry and determine the validity of the objections which necessarily involves an inquiry into the question as to whether the evidence relates to an affair of State under s. 123. In this inquiry the Court has to determine the character and class of the document. The provisions of s. 162 make a departure from English law in one material particular and that is the authority given to the Court to hold a preliminary enquiry into the character of the document. Under s. 162 of the Evidence Act the Court has the overriding power to disallow a claim of privilege raised by the State in respect of an unpublished document pertaining to matters of State, but in its discretion the Court will exercise its power only in exceptional circumstances when public interest demands, that is, when the public interest served by the disclosure clearly outweighs that served by the nondisclosure. In this case the Chief Secretary filed an affidavit whereas the Minister would have done it. This claim of privilege is not rejected on account of this procedural defect. Arguments for the Respondent in the present case the affidavit was not filed at the relevant time, nor is it clear that the Secretary or the Minister of the Department concerned ever applied their mind at the relevant time. The Supreme Court in Sukhdeo Singh’s case held that the objection to the production or admissibility of document of which privilege is claimed, should be taken by himself by means of an affidavit. Section 162 of the Evidence Act indicates that the objection should be filed on the date which is fixed for the production of document so that the Court may decide the validity of such objection. Such objection must be by, means of an affidavit. In A mar Chand Butail v. Union of India the Supreme Court held that as the affidavit was not filed, no privilege could be claimed. This Court also looked to the document and on merits it was held that the document was not such document whose, disclosure was not in the public interest. On that ground also, the claim for privilege was disallowed. In the present case the question does not arise as the summons was issued to the Head of the Department who was asked to appear in person or through some other officer authorised by him for the purpose of giving-evidence and for producing documents. The Head of the Department was, therefore, under obligation to comply with the summons of the Court and to file his affidavit if he wanted to claim privilege. The High Court was right in drawing inference from non-filing of the affidavit of the. Head of the Department that no privilege was claimed. The Court has a right to look to the document itself and take a decision as to whether the document concerned was such which at all related to any affairs of the State. The Court has the power of having a judicial review over the opinion of the Head of the Department.

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1596 of 1974.

Appeal by Special Leave from the Judgment and Order dated the 20th March, 1974 of the Allahabad High Court in Election Petition No. 5 of 1971.

Niren De, Attorney General of India, B. D. Agarwala, and 0. P. Rana, for the appellant.

Shanti Bhushan and J. P. Goyal, for respondent no. 1. Yogeshwar Prasad, S. K. Bagga and S. P. Bagga for respondent no. 2.

The Judgment of A. N. Ray, C.J., A. Alagiriswami, R. S. Sarkaria and N. L. Untwalia, JJ, was delivered by A. N. Ray, C.J. K. K. Mathew, J. gave his separate Opinion. RAY, C.J.-This is an appeal by special leave from the judgment dated 20 March, 1974 of the learned Single Judge of the High Court at Allahabad, holding that no privilege can be claimed by the Government of Uttar Pradesh under section 123 of the Evidence Act in respect of what is described for the sake of brevity to be the Blue Book summoned from the Government of Uttar Pradesh and certain documents summoned from the Superintendent of Police, Rae Bareli, Uttar Pradesh.

Shri Raj Narain, the petitioner in Eelection Petition No. 5 of 1971. in the High Court of Allahabad, made an application on 27 July, 1973 for summoning certain witnesses along with documents mentioned in the application. The summons was inter alia for the following witnesses along with following documents

First the Secretary, General Administration, State of Uttar Pradesh Lucknow or any officer authorised by him was summoned to produce inter alia (a) circulars received from the Home Ministry and the Defence Ministry of the Union Government regarding the security and tour arrangements of Shrimati Indira Nehru Gandhi, ‘the respondent in Election Petition for the tour programmes of Rae Bareli District on 1, 24 and 25 February., 1971 or any general order for security arrangement; and (b) All correspondence between the State Government and the Government of India and between the Chief Minister and the Prime Minister regarding Police arrangement for meeting of the Prime Minister by State Government and in regard to their expenses.

(a) Second, the Chief Secretary,: Government of Uttar Pradesh, Lucknow was also summoned along with inter alia the documents, namely, circulars received from the Home Ministry and Defence Ministry of the Union Government regarding the security and tour arrangements of Shrimati Indira Nehru Gandhi for the tour programmes of Rae Bareli District for 1, 24 and 25 February, 1971;

(b) All correspondence between the State Government and the Government of India and between the Chief Minister and the Prime Minister, regarding the arrangement of Police for the arrangement of meeting for the Prime Minister by State Government and in regard to their expenses.

Third, the Head Clerk of the office of the Superintendent of Police of District Rae Bareli was summoned along with inter alia the following

(a) all documents relating to the tour program of Shkimati Indira Nehru Gandhi of District Rae Bareli for 1 and 25 February, 1971;

(b) all the documents relating to arrangement of Police and other security measures adopted by the Police and all documents relating to expenses incurred on the Police personnel, arrangements of the Police, arrangements for constructions of Rostrum, fixation of loudspeakers and other arrangements through Superintendent of Police, District Rae Bareli. On 3 September, 1973 the summons was issued to the Secretary, General Administration.

The summons was endorsed to the Confidential Department by the General Department on 3 September, 1973 as will appear from paragraph 5 of the affidavit of R. K. Kaul, Commissioner and Secretary in- charge.

On 5 September, 1973 there was an application by the Chief Standing Counsel on behalf of the Chief Secretary, Uttar Pradesh, Lucknow for clarification to the effect that the Chief Secretary is not personally required to appear pursuant to the summons.

The learned Judge made an order on that day that the Chief Secretary need not personally attend and that the papers might be sent through some officer.

On 6 September, 1973 S. S. Saxena, Under Secretary, Confidential Department, was deputed by R. K. Kaul, Home Secretary as well as Secretary, Confidential Department, to go to the High Court with the documents summoned and to claim privilege. This will appear from the application of S. S. Saxena dated 19 September, 1973.

In paragraph 4 of the said application it is stated that in compliance with the summons issued by the High Court the Home Secretary deputed the applicant Saxena to go to the Court with the documents summoned with clear instructions that privilege is to be claimed under section 123 of the Evidence Act in regard to the documents, namely, the Booklet issued by the Government of India containing Rules and 339

Instructions for the protection of the Prune Minister when on tour and in travel, and the correspondence exchanged between the two Governments and between the Chief Minister, U.P. and the Prime Minister in regard to the Police arrangements for the meetings of the Prime Minister. Saxena was examined by the High Court on 10 September, 1973. On 10 September, 1973 there was an application on behalf of the Election Petitioner that the claim of privilege by Saxena evidence be rejected. In the application it is stated that during the course of his statement Saxena admitted that certain instructions were. issued by the Central Government for the arrangement of Prime Minister’s tour which are secret and hence he is not in a position to file those documents. The witness claimed privilege in respect of that document. It is stated by the election petitioner that no affidavit claiming privilege has been filed by the Head of the Department and that the documents do not relate to the affairs of the State.

On 11 September, 1973 there was an order as follows. The application of the election petitioner for rejection of the claim for privilege be put up for disposal. The arguments might take some time and therefore the papers should be left by Saxena in a sealed cover in the Court. In case the objection would be sustained, the witness Saxena. would be informed to take back the sealed cover.

On 12 September, 1973 an application was filed by Ram Sewak Lal Sinha on an affidavit that the Superintendent of Police. Rae Bareli claimed privilege under-section 123 of the Evidence-Act. The witness was discharged. On behalf of the election petitioner it was said that an objection would be filed to make a request that the Superintendent of Police, Rae Bareli be produced before the Court for cross exami- nation. The election petitioner filed the objection to the affidavit claiming privilege by the Superintendent of Police, Rae Bareli.

On 13 September, 1973 the learned Judge ordered that arguments on the question of privilege would be heard on 19 September, 1973. S. S. Saxena filed an application supported by an affidavit of R. K. Kaul. The deponent R. K. Kaul in his affidavit affirmed on 19 September,1973 stated that the documents summoned are unpublished official records relating to affairs of the State and their disclosure will be prejudicial to public interest for the reasons set out therein. The secrecy of security arrangement was one of the reasons mentioned. Another reason was that arrangements of the security of the Prime Minister, the maintenance of public order and law and order on the occasion of the visits of the Prime Minister are essentially in nature such that to make them public would frustrate the object intended to be served by these Rules and Instructions.

On 20 September 1973 the case was listed for arguments for deciding preliminary issues and on the question of privilege. on 20 September, 1973 an objection was made that the Chief Standing Counsel had no locus standi to file an objection claiming privilege. on 21 September, 1973 the arguments in the matter of privilege were heard. On 24 September, 1973 further arguments on the question of privilege were adjourned until 29 October, 1973. 23 October, 1973 was holiday. On 30 October, 1973 arguments were not concluded. On 30 October, 1973 the Advocate General appeared and made a statement regarding the Blue Book to the effect that the witness Saxena was authorised by the Head of the Department R. K. Kaul, Home Secretary to bring the Blue Book to the Court and the documents summoned by the Court and the Head of the Department did not permit Saxena to file the same. The witness was permitted to show to the Court if the Court so needed. Further arguments on the question of privilege were heard on 12, 13 and 14 days of March, 1974 The judgment was delivered on 20 March, 1974. The learned Judge on 20 March, 1974 made an order as follows “No privilege can be claimed in respect of three sets of paper allowed to be produced. The three sets of papers are as follows. The first set consists of the Blue Book, viz., the circulars regarding the security arrangements of the tour programme of Shrimati Indira Nehru Gandhi and instructions received from the Government of India and the Prime Minister’s Secretariat on the basis of which Police arrangement for constructions of Rostrum, fixation of loudspeakers and other arrangements were made, and the correspondence between the State Government & the Government of India regarding the police arrangements for the meetings of the Prime Minister. The second set also relates to circulars regarding security and tour arrangements of Shrimati Indira Nehru Gandhi for the tour programme of Rae Bareli and correspondence regarding the arrangement of police for the meetings of the Prime Minister. The third set summoned from the Head Clerk of the Office of the Superintendent of Police relates to the same.” The learned Judge expressed the following view. Under section 123 of the Evidence Act the Minister or the head of the department concerned must file an affidavit at the first instance. No such affidavit was filed at the first instance. The Court cannot exercise duty under section 123 of the Evidence Act suo motu. The court can function only after a privilege has been claimed by affidavit. It is only when permission has been withheld under section 123 of the Evidence Act that the Court will decide. Saxena in his evidence did not claim privilege even after the Law Department noted in the file that privilege should be claimed Saxena was allowed to bring the Blue Book without being sealed in a cover. The head of the department should have sent the Blue Book under sealed cover along with an application and an affidavit to the effect that privilege was being claimed. No privilege was claimed at the first instance.

The learned Judge further held as follows. The Blue Book is not an unpublished official record within the meaning of section 123 of the Evidence Act because Rule 71(6) of the Blue Book was quoted by a Member of Parliament. The Minister did not object or deny they correctness of ‘the quotation. Rule 71(6) of the Blue Book has been filed in the election petition by the respondent to the election petition Extracts of Rule 71(6) of the Blue Book were filed by the Union Government in a writ proceeding. If a portion of the Blue Book had been disclosed, it was not an unpublished official record. The respondent to the election petition hid no right to file even a portion of the Blue Book in support of her defence. When a portion of the Blue Book had been used by her in her defence it cannot be said that the Blue Book had not been admitted in evidence. Unless the Blue Book is shown to the election petitioner he cannot show the correctness or otherwise of the said portion of the Blue Book and cannot effectively cross-examine the witnesses or respondent to the election petition. Even if it be assumed that the Blue Book has not been admitted in evidence and Kaul’s affidavit could be taken into consi- deration, the Blue Book is not an unpublished official record.

With regard to documents summoned from the Superintendent of Police the High Court said that because these owe their existence to the Blue Book which is not a privileged document and the Superintendent of Police did not give any reason why the disclosure of the documents would be against public interest, the documents summoned from the Superintendent of Police cannot be privilege documents either.

The High Court further said that in view of the decisions. of this Court in State of Punjab v. Sodhi Sukhdev Singh(1); Amar Chand Butail v. Union of India(2) and the English decision in Conway v. Rimmer & Anr. (3) the Court has. power to inspect the document regarding which privilege is claimed. But because the Blue Book is not an unpublished official record, there is no necessity to inspect the Blue Book.

The English decisions in Duncan v. Cammell Laird & Co.(4); Conway v. Rimmer & Anr. (supra); and Rogers v. Home Secretary(5) surveyed the earlier law on the rule of exclusion of documents from production on the ground of public policy or as being detrimental to the public interest or service. In the Cammell Laired case (supra) the respondent objected to produce certain documents referred to in the Treasury Solicitors letter directing the respondent not to produce the documents. It was stated that if the letter was not accepted as sufficient to found a claim, for privilege the First Lord of Admirality would make an affidavit. He did swear an affidavit. On summons for inspection of the documents it was held that it is not uncommon in modern practice for the Minister’s objection to be conveyed to the Court at any rate in the first instance by an official of the department who produces a certificate which the Minister has signed stating what is necessary. If the Court is not satisfied by this method the Court cart request the Minister’s personal attendance.

(1) (1961] 2 S.C.R. 371.
(2) A.I.R. 1964 S.C.,1658.
(3) [1968] 1 A.E.R- 874 : [1968] A C 910.
(4) [1942] A C- 642.
(5) [1973] AC 388.

Grosvenor Hotel, London(1) group of cases turned on an order for mutual discovery of documents and an affidavit of the respondent, the British Railway Board, objecting to produce certain documents. The applicant challenged that the objection of the respondent to produce the document was not properly made. The applicant asked for leave to cross- examine the Minister. The Minister was ordered to swear a further affidavit. That order of the learned-Chamber Judge was challenged in appeal. The Court of Appeal refused to interfere with the discretion exercised by the Chamber Judge. The Minister filed a further affidavit. That affidavit was again challenged before the learned Chamber Judge as not being in compliance with, the order. It was, held that the affidavit was in compliance with the order. The learned Judge held that Crown privilege is not merely a procedural matter and it may be enforced by the courts in the interest of the State without the intervention of the executive, though normally the executive claims it. The matter was taken up to the Court of Appeal, which held the order of the Chamber Judge. It was observed that the nature of prejudice to the public interest should be specified in the Minister’s affidavit except in case where the prejudice is so obvious that it would be unnecessary to state it. in the Cammell Laird case (supra) the House of Lords said that documents are excluded from production if the public interest requires that they should be withheld. Two tests were propounded for such exclusion. The first is in regard to the contents of the particular document. The second is the fact that the document belongs to a class which on grounds of public interest must as a class be withheld from production. This statement of law in the Cammell Laird case (supra) was examined in Conway v. Rimmer & Anr. In Conway v. Rimmer & Anr. (supra) it was held that although an objection validly taken to production on the ground that this would be injurious to the public interest is conclusive it is important to remember that the decision ruling out such document is the decision of the Judge. The reference to ‘class’ documents in the Cammell Laird case (supra) was said in Conway v. Rimmer & Anr. (supra) to be, obiter. The Minister’s claim of privilege in the Cammell Laird case (supra) was at a time of total war when the slightest escape to the public of the most innocent details of the latest design of submarine founders might be a source of danger to the State.

In Conway v. Rimmer & Anr. (supra) the test propounded in Asiatic Petroleum Co. Ltd. v. Anglo Persian Oil Co. Ltd.(2) was adopted that the information cannot be disclosed without injury to the public interest and- not that the documents are confidential or official.

(1) (1963) 3 A E R 426: (1964) 1 A E R 92 :(1964) 2 A E R 674 and (1964) 3 A E R 354.
(2) [1916] 1 K B 830.

With regard to particular class of documents for which privilege was claimed it was said that the Court would weigh in the balance on the one side the public interest to be protected and on the other the interest of the subject who wanted production of some documents which he believed would support his own or defeat his adversary’s case. Both were said in Conway v. Rimmer & Anr. case (supra) to be matters of public interest. In this background it was held in Conway v. Rimmer & Anr. (supra) that a claim made by a Minister on the basis that the disclosure of the contents would be prejudicial to the public interest must receive the greatest weight; but even here the Minister should go as far as he properly can without prejudicing the public interest in saying why the contents require protection. In Conway v. Rimmer & Anr. (supra) it was said “in such cases it would be rare indeed for the court to overrule the Minister but it has the legal power to do so, first inspecting the document itself and then ordering its production”. As to the “class” cases it was said in Conway v. Rimmer & Anr. (supra) that some documents by their Very nature fall into a class which requires protection. These are Cabinet papers, Foreign Office dispatches, the security of the State, high level interdepartmental minutes and correspondence and documents pertaining to the general administration of the naval, military and air force services. Such documents would be the subject of privilege by reason of their contents and also by their ‘class’. No catalog can be compiled for the ‘class’ cases. The reason is that it would be wrong and inimical to the functioning of the public service if the public were to learn of these high level communications, however innocent of prejudice to the State the actual comments of any particular document might be,. In Rogers v. Homer Secretary (supra) witnesses were summoned to give evidence and to produce certain documents. The Home Secretary gave a certificate objecting to the production of documents. There was an application for certiorari to quash the summons issued to the witnesses. On behalf of the Home Secretary it was argued that the Court could of its own motion stop evidence being given for documents to be produced. The Court said that the real question was whether the public interest would require that the documents should not be produced. The Minister is an appropriate person to assert public interest. The public interest which demands that the evidence be withheld has to be weighed against the public interest in the administration of justice that courts should have the fullest possible access to all relevant material. Once the public interest is found to demand that the evidence should be withheld then the evidence cannot be admitted. In proper cases the Court will exclude evidence the production of which, it sees is contrary to public interest. In short, the position in law in an–‘ is that it is ultimately for the court to decide whether or not it is in the public interest that the document should be disclosed. An affidavit is necessary. Courts have some times held certain class of documents and information to be entitled in the public interest to be immune from disclosure.

Evidence is admissible and should be received by the Court to which it is tendered unless there is a legal reason for its rejection. Admissibility presupposes relevancy. Admissibility also denotes the absence of any applicable rule of exclusion. Facts should not be received in evidence unless they are both relevant and admissible. 344

The principal rules of exclusion under which evidence becomes inadmissible are two-fold. First, evidence of relevant facts is inadmissible when its reception offends against public policy or a particular rule of law. Some matters are privileged from disclosure. A party is some- times estopped from proving facts and these facts are therefore inadmissible. The exclusion of evidence of opinion and of extrinsic evidence of the contents of some documents is again a rule of law. Second, relevant facts are, subject to recognised exceptions inadmissible unless they are proved by the best or the prescribed evidence. A witness, though competent generally to give evidence, may in certain cases claim privilege as a ground for refusing to disclose matter which is relevant to the issue. Secrets of state, papers, confidential official documents and communications between .he Government and its officers or- between such officers are privileged from production on the ground of public policy or as being detrimental to the public interest or service.

The meaning of unpublished official records was discussed in the Cammell Laird case (supra). It was argued-there that the documents could not be withheld because-they had already been produced before the Tribunal of Enquiry into the loss of the “Thetis’. The House of Lords held that if a claim was validly made in other respects to, withhold documents in connection with the pending action on the, ground ,of public policy it would not be defeated by the circumstances that they had been given a limited circulation at such an enquiry, because special precautions might have been taken to avoid injury and the tribunal’s sittings might be secret. In Conway v. Rimmer & Anr. (supra) it was said that it would not matter that some details of a document might have been disclosed at an earlier enquiry. It was said that if part of a document is innocuous but part of it is of such a nature that its disclosure would be undesirable it should seal up the latter part and order discovery of the rest, provided that this would not give a distorted or misleading impression.

This Court in Sukhdev Singh’s case (supra) held that the principle behind section 123 of the Evidence Act is the overriding and paramount character of public interest and injury to public interest is the sole foundation of the section. Section 123 states that no one shall be permitted to give any evidence derived from unpublished official records relating to_ any affairs of 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. The expression “Affairs ,of State” in section 123 was explained with reference to section 162 of the Evidence Act. Section 162 is in three limbs. The first limb states that a witness summoned to produce a document shall, if 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. The validity of an such objection shall decided by the Court. The second limb of section 162 says 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. ‘the third limb speaks of translation of documents which is not relevant here. In Sukhdev Singh’s case (supra) this Court said that the first limb of section 162 required a witness to produce a document to bring it to the Court and then raise an objection against its production or its admissibility. The second limb refers to the objection both as to production and admissibility. Matters of State in the second limb of section 162 were said by this Court in Sukhdev Singh’s case (supra) to be identical with the expression “affairs of State?’ in section 123.

In Sukhdev Singh’s case (supra) it was said that an objection against the production of document should be made in the form Of an affidavit by the Minister or the Secretary. When an affidavit is made by the Secretary, the Court may, in a proper case, require the affidavit of the Minister. If the affidavit is found unsatisfactory, a further affidavit may be called. In a proper case, the person making the affidavit can be summoned to face an examination. In Sukhdev Singh’s case. (supra) this Court laid down these propositions. First, it is a matter for the authority to decide whether the disclosure would cause injury to public interest. The Court would enquire into the question as to whether the evidence sought to be excluded from production relates to an affair of State. The Court has to determine the character and class of documents. Second, the harmonious construction of sections 123 and 162 shows there is a power conferred on the Court under section 162 to hold a preliminary enquiry into the character of the document. Third, the expression “affairs of State” in section 123 is not capable of definition. Many illustrations are possible. “If the proper functioning of the public service would be impaired by the disclosure of any document or class of documents such document or such class of documents may also claim the status of documents relating to public affairs’. Fourth, the second limb of section 162 refers to the objection both as to the production and the admissibility of the document. Fifth, 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 document in question. That is a matter for the authority concerned to decide. But the Court is competent and is bound to hold a preliminary enquiry and determine the validity of the objection to its production. 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 Sukhdev Singh’s case (supra) this Court said that the power to inspect the documents cannot be exercised where the objection relates to a documents having reference to matters of State and it is raised under section 123 (See (1961) 2 S.C.R. at page 839). The view expressed by this Court is that the Court is empowered to take other evidence to enable it to determine the validity of the objection. The Court, it is said, can take other evidence in lieu of inspection of the document in dealing with a privilege claimed or an objection raised even under section 123. It is said that the Court may take collateral evidence to determine the character or class of documents. In Sukhdev Singh’s case (supra) it has also been. said that if the Court finds that the document belongs to what is said to be the noxious class it will leave to the discretion of the head of the department whether to permit its production or not. The concurring views in Sukhdev Singh’s case (supra) also expressed the opinion that under no circumstances the court can inspect such a document or permit giving secondary evidence of its contents.

In Amar Chand Butail’s case (supra) the appellant called upon the respondents the Union and the State to produce certain documents. The respondents claimed privilege. This Court saw the documents and was satisfied that the claim for privilege was not justified.

In Sukhdev Singh’s case (supra) the majority opinion was given by Gajendragadkar, J. In Amar Chand Butail’s case (supra) Gagendragadkar, C.J. spoke for the Court in a unanimous decision. In the later case this Court saw the document. In Sukhdev Singh’s case (supra) this Court said that an enquiry would be made by the ‘Court as to objections to produce document. It is said that collateral evidence could be taken. No oral evidence can be given of the con- tents of documents. In finding out whether the document is a noxious document which should be excluded from production on the .ground that it relates to affairs of State, it may sometimes be difficult for the Court to determine the character of the document without the court seeing it. The subsequent Constitution Bench decision in Amar Chand Butail’s case- (supra) recognised the power of inspection by the Court of the document.

In Slob-Divisional Officer, Mirzapur v. Raja Sri Niwas Prasad Singh(1) this Court in a unanimous Constitution Bench decision asked the Compensation Officer to decide in the light of the decisions of this Court whether the claim for privilege raised by the State Government should be sustained or not. This Court gave directions for filing of affidavits by the heads of the department. This direction was given about 10 years after the State Government had claimed privilege in certain proceedings. In the Sub-Divisional Officer; Mirzapur case (supra) the respondent filed objections to draft compensation assessment rolls. Compensation was awarded to the respondent. The State applied for reopening of the objection cases. The respondent asked for production of some documents. The State claimed privilege. The District Judge directed that compensation cases should be heard by the Sub-Divisional Officer. The respondent’s application for discovery and production was rejected by the Compensation Officer. The District Judge thereafter directed that compensation cases should be heard by the Sub-Divisional Officer. The respondent again filed applications for discovery and inspection of these documents. The State Government again claimed privilege. The respondent’s applications were rejected. The respondent then filed a petition under Article 226 of the Constitution for a mandamus to Compensation Officer to bear and determine the applications.

(1) [1966] 2 SC R- 970,

The High Court said that the assessment rolls had become final and could not be opened. This Court on appeal quashed the order of the Sub Divisional Officer whereby the respondent’s applications for discovery and production had been rejected and directed the, Compensation Officer to decide the matter on a proper affidavit by the State.

On behalf of the election petitioner it was said that the first summons addressed to the Secretary, General Administration required him or an officer authorised by him to give evidence and to produce the documents mentioned therein. The second summons was addressed to the Home Secretary to give evidence on 12 September, 1973. The third summons was addressed to the Chief Secretary to give evi- dence on 12 September, 1973 and to produce certain documents. The first summons, it is said on behalf of the election petitioner, related to the tour programmes of the Prime Minister. The election petitioner, it is said, wanted the documents for two reasons. First, that these documents would have a bearing on allegations of corrupt practice, viz., exceeding the prescribed limits of election expenses. The, election petitioner’s case is that rostrum, loudspeakers, decoration would be within the expenditure of the candidate. Second, the candidate had the assistance of the Gazetted Officer for furthering the prospects of the candidate’s election.

On behalf of the election petitioners it is said that objection was taken with regard to certain documents in the first summons on the ground that these were secret papers of the State, but no objection was-taken by an affidavit by the head of the department. With regard to the other documents which the Superintendent of Police was called to produce the contention on behalf of the election petitioner is that the Superintendent of Police is not the head of the department and either the Minister or the Secretary should have affirmed an affidavit.

Counsel on behalf of the election petitioner put in the forefront that it was for the Court to decide whether the disclosure and production of documents by the State would cause prejudice to public interest or whether non-disclosure of documents would cause harm to the interest of the subject and to the public interest that justice should be done between litigating parties. This submission was amplified by counsel for the election petitioner by submitting that it had to be found out at what stage and it what manner privilege was to be claimed and in what circumstances the Court could look into the document to determine the validity of the claim to privilege raised under section 123. The, other contention on behalf of the election petitioner was that if a part of the document was made public by lawful custodian of the document the question was whether the document could still be regarded a-, an unpublished document. It was also said if there was a long document and if parts thereof were noxious and therefore privileged whether the unanimous part could still be brought on the record of the litigation.

Counsel for the election petitioner leaned heavily on the decision in Conway v. Rimmer & Anr. (supra) that the Court is to balance the rival interests of disclosure and non- disclosure.

the first question which falls for decision is whether the learned Judge was right in holding that privilege was not claimed by filing an affidavit at the first instance. Counsel on behalf of the election petitioner submitted that in a case in which evidence is sought to be led in respect of matters derived from unpublished records relating to affairs of State at a stage, of the proceedings when the head of the department has not come into picture and has not had an opportunity of exercising discretion under section 123 to claim privilege it will be the duty of the court. to give effect to section 123 and prevent evidence being led till the head of the department has had the opportunity of claiming privilege. _But in case in which documents are sum- moned, it is said by counsel for the election petitioner, the opportunity of claiming privilege in a legal manner has already been furnished when summons is received by the head of the department and if he does not claim privilege the court is under no legal duty to ask him or to give him another opportunity.

The documents in respect of which exclusion from production is claimed are the blue book being rules and instructions for the protection of the Prime Minister when on tour and in travel. Saxena came to court and gave evidence that the blue book was a document relating to the affairs of State and was not to be disclosed. The Secretary filed an affidavit on 20 September, 1973 and claimed privilege in respect of the blue book by submitting that the document related to affairs of State and should, therefore, be excluded from production.

The several decisions to which reference has already been made establish that the foundation of the law behind sections 123 and 162 of the Evidence Act is the same as in English law. It is that injury to public interest is the reason for the exclusion from disclosure of documents whose contents if disclosed would injure public and national interest. Public interest which demands that evidence be withheld is to be weighed against the public interest in the administration of justice that courts should have the fullest possible access to all relevant materials. When public interest outweigh’s the latter, the evidence cannot be admitted. The court will proprio motu exclude evidence the production of which is contrary to public interest. It is in public interest that confidentiality shall be safeguarded. The reason is that such documents become subject to privilege by reason of their contents Confidentiality is not a head of privilege. It is a consideration to bear in mind. It is not that the contents contain material which it would be damaging to the national interest to divulge but rather that the documents would be of class which demand protection. (See Rogers v. Home Secretary (supra) at p. 405). To illustrate the class of documents would embrace Cabinet papers, Foreign Office dispatches, papers regarding the security to the State and high level interdepartmental minutes. In the ultimate analysis the contents of the document are so described that it could be seen at once that in the public interest the documents are to be withheld. (See Merricks and Anr. v. Nott Bower & Anr.(1). It is now the well settled Practice in our country that an objection is raised by an affidavit affirmed by the head of the department. The Court may also reunite a Minister to affirm an affidavit. That will arise in the course of the enquiry by the Court as to whether the document should be withheld from disclosure. If the Court is satisfied with the affidavit evidence, that the document should be protected in public interest from production the matter ends there. If the Court would yet like to satisfy itself the Court may see the document. This will be the inspection of the, document by the Court. Objection as to production as well as admissibility contemplated in section 162 of the Evidence Act is decided by the Court in the enquiry as explained by this Court in Sukhdev Singh’s case (supra). In the facts and circumstances of the present case it is apparent that the affidavit affirmed by R. K. Kaul, Chief Secretary on 20 September, 1973 is an affidavit objecting to the production of the documents. The oral evidence of Saxena as well as the aforesaid affidavit shows that objection was taken at the first instance.

This Court has said that where no affidavit was filed an affidavit could be directed to be filed later on. The Grosvenor Hotel, London group of cases (supra) in England shows that if an affidavit is defective an opportunity can be given to file a better affidavit. It is for the court to decide whether the affidavit is clear in regard to objection about the nature of documents. The Court can direct further affidavit in that behalf. If the Court is satisfied with the affidavits the Court will refuse disclosure. If the Court in spite of the affidavit wishes to inspect the document the Court may do so.

The next question is whether the learned Judge was right in holding that the blue book is not an unpublished official record. On behalf of the election petitioner, it was- said that a part of the document was published by the Government, viz., paragraph 71(6) in a writ proceeding. It is also said that the respondent to the election petition referred to the blue book in the answer filed in the Court. in the Canmell Laird case, it was said that though some of the papers had been produced before the Tribunal of Enquiry and though reference was made to those papers in the Enquiry Report yet a privilege could be claimed. Two reasons were given. One is that special precaution may have been taken to avoid public injury and the other is that portions of the Tribunal’s sittings may have been secret. In the present case, it cannot be, said that the blue book is a published document. Any publication of parts of the blue book which may be described the innocuous part of the document will not render the entire document a published one.

(1) [1964] 1 A E R 717

For these reasons, the judgment of the High Court is set aside. The learned judge will consider the affidavit a firmed by R. K. Kaul. The learned Judge will give, an opportunity to the head of the department to file affidavit in respect of the documents summoned to be produced by the Superintendent of Police. The, learned Judge, will consider the affidavits. If the learned Judge will be satisfied On the affidavits that the documents require protection from production, the matter will end there. If the learned Judge will feel inclined in spite of the affidavits to inspect the documents to satisfy himself about the real nature of the documents, the learned Judge will be pleased to inspect the same and pass appropriate orders thereafter,. If the Court will find on inspection that any part of a document is innocuous in the sense that it does not relate to affairs of State the Court could order disclosure of the innocuous part provided that would not give a distorted or misleading impression. Where the Court orders disclosure of an innocuous part as aforesaid the Court should seal up the other parts which are said to be noxious because their disclosure would be undesirable. Parties will pay and bear their own costs.

MATHEW, J. During the trial of the election petition filed by respondent No. 1 against respondent No. 2, respondent No. 1 applied to the Court for summons to the Secretary, General Administration and the Chief Secretary, Government of U.P. and the Head Clerk, Office of the Superintendent of Police, Rai Bareily, for production of certain documents. In pursuance to summons issued to the Secretary, General Administration and the Chief Secretary, Government of U.P., Mr. S. S. Saxena appeared in court with the documents and objected to produce:

(1) A blue book entitled “Rules and Instructions for the Protection of Prime Minister when on tour or in travel;

(2) Correspondence exchanged between the two governments viz., the Government of India and the Government of U.P. in regard to the police arrangements for the meetings of the Prime Minister; and

(3) Correspondence exchanged between the Chief Minister, U.P. and the Prime Minister in regard to police arrangements for the meetings of the latter;

without filing an affidavit of the Minister concerned or of the head of the department.

Saxena was examined by Court on 10-9-1973.

The 1st res- pondent filed an application on that day praying that as no privilege was claimed by Saxena, he should be directed to produce these documents. The Court passed an order on 11-9- 1973 that the application be put up for disposal. As Saxena’s examination was not over on 10-9-1973, the Court kept the documents in a sealed cover stating that in case the claim for privilege was sustained, Saxena would be informed so, that he could take back the documents. Examination of Saxena was over on 12-9-1973. On that day, the, Superintendent of Police, Rai Bareily, filed an affidavit claiming privilege in respect of the documents summoned from his office. The Court adjourned the argument in regard to privilege and directed that it be heard the next day. On 13-9-1973 the Court adjourned the hearing to 14-9-1973 on which date the hearing was. again adjourned to 20-9-1973. On 20-9-1973, Saxena filed in Court an application and the Home Secretary to the Government of U.P., Shri R, K. Kaul, the head of the department in question an affidavit claiming privilege for the documents. The argument was concluded on 14-3-1974 and the Court passed the order on 20-3-1974 rejecting the claims for privilege. This appeal, by special leave, is against that order. The first question for consideration is whether the privilege was lost as no affidavit sworn by the Minister in charge or the Head of the Department claiming privilege was filed in the first instance.

In State of Punjab v. Sodhi Sukhdev Singh(1) this Court held that the normal procedure to be followed when an officer is summoned as witness to produce a document and when he takes a plea of privilege, is, for the Minister in charge or the head of the department concerned to Me an affidavit showing that he had read and considered the document in respect of which privilege is claimed and containing the general nature of the document and the particular danger to which the State would be, exposed by its disclosure. According to the Court, this was required as a guarantee. that the statement of the Minister or the head of the department which the Court is asked to accept is one that has not been expressed casually or lightly or as a matter of departmental routine, but is one put forward with the solemnity necessarily attaching to a sworn statement.

In response to the summons issued to the Secretary, General Administration and the Chief Secretary, Government of U.P., Saxeiia was deputed to take the documents summoned to the Court and he stated in his evidence that he could not Me the blue book as it was marked ,secret, and as he was not permitted by the Home Secretary to produce it in Court. As no affidavit of the Minister or of the Head of the Department was filed claiming Privilege under s. 123 of the Evidence Act in the first instance, the Court said that the privilege was lost and the affidavit filed on 20-9-1973 by Shri R. K. Kaul, Home Secretary, claiming privilege, was of no avail. The Court distinguished the decision in Robinson v. State of South Australia(2) where their Lordships of the Privy Council said that it would be contrary to the public interest to deprive the state of a further opportunity of regularising its claim for protection by producing an affidavit of the description already indicated by saying that these observations have no application as, no affidavit, albeit defective, was filed in this case in the first instance.

(1) [1961] 2 S C R 371.

(2) AIR 1931 PC 254.

The Court further observed that it was only when a proper affidavit claiming privilege was filed that the Court has to find whether the document related to unpublished official record of affairs of State, that a duty was cast on the Minister to claim privilege and that, duty could not be performed by Court, nor would the Court be justified in suo motu ordering that the document should be disclosed. The Court then quoted a passage from the decision of this Court in Sodhi Sukhdev Singh’s case (supra) to the effect that court has no power to hold an enquiry into the possible injury to the public interest which may result from the disclosure of the document as that is a matter for the authority concerned to decide but that the court is competent and indeed bound to hold a preliminary enquiry and determine the validity of the objection and that necessarily involves an enquiry into ‘the question whether the document relates to an affair of state under s. 123 or not.

The second ground on which the learned judge held that no privilege could be claimed in respect of the, Blue Book was that since portions of it had in fact been published, it was not an unpublished official record relating to affairs of state. He relied upon three circumstances to show that portions of the Blue Book were published. Firstly, the Union Government had referred to a portion of it (Rule 71/6) in an affidavit filed in Court. Secondly, respondent No. 2 had obtained a portion of the Blue Book (Rule 71/6) and had produced it in court along with her written statement in the case and thirdly that Shri Jyotirmoy Bosu, a Member of Parliament had referred to this particular rule in Parliament.

The learned Judge, however, did not consider or decide whether the Blue Book related to any affair of state, perhaps, in view of his conclusion that it was not an unpublished official record.

Section 123 of the Evidence Act states “..from unpublished official records relating to any affairs of state, except with the permission of the Officer at the head of the department concerned, who shall give or withhold such permission as be thinks fit.”

Section 162 of the Evidence Act provides that when a witness brings to court a document in pursuance to summons and raises an objection to its production or admissibility, the Court has to- determine the validity of the objection to the production or admissibility and, for so doing, the court can inspect the document except in the case of a document relating to affairs of state or, take such other evidence as may be necessary to determine its admissibility.

Having regard to the view of the High Court that since the privilege was not claimed in the first instance by an affidavit of the Minister or of the head of the department concerned, the privilege could not thereafter be asserted and that no inquiry into the question whether the disclosure of the document would injure public interest can be conducted by the court when privilege is claimed, it is necessary to see the scope of s. 123 and s. 162 of the Evidence Act.

The ancient proposition that the public has a right to every man’s evidence has been reiterated by the Supreme Court of U.S.A. in its recent decision in United States v. Nixon. This duty and its equal application to the executive has never been doubted except in cases where it can legitimately claim that the evidence in its possession relates to secret affairs of state and cannot be disclosed without injury to public interest.

The foundation of the so-called privilege is that the information cannot be disclosed without injury to public interest and not that the document is confidential or official which alone is no reason for its non-production(1). In Durcan v. Cammel Lavid & Co.(2) Lord Simon said that withholding of documents on the ground that their pub- lication would be contrary to the public interest is not properly to be regarded as a branch of the law of privilege connected with discovery and that ‘Crown privilege’ is, for this reason, not a happy expression.

Dealing with the topics of exclusion of evidence on the ground of estate interest, Cross says that this head of exclusion of evidence differs from privilege, as privilege can be waived, but that an objection on the score of public policy must be taken by the Judge if it is not raised by the parties or the Crown.(3)

Phipson deals with the topic under the general category “Evidence excluded by public policy”. He then lists as an entirely separate category: “Facts excluded by privilege,” and deals there with the subject of legal professional communication, matrimonial communication, etc., topics dealt with by sections 124-131 of the Evidence Act(4). A privilege normally belongs to the parties and can be waved. But where a fact is excluded from evidence by considerations of public policy, there is no power to waive in the parties see in this connection Murlidhar Aggarwal v. State of U.P. (5).

Lord Reid in Beg v. Lewas(6) said that the expression ‘Crown privilege is wrong and may be, misleading and that there is no question of any privilege in the ordinary sense of the word, as the real question is whether the public interest requires that a document shall not be produced and, whether the public interest is so strong as to override the ordinary right and interest of a litigant that he shall be able to I before a court of justice all relevant evidence.

(1) gee Asiatic Petroleum Company Ltd. v Anglo Persian Oil Co. [1916] 1 K B 822, at 830; and Conway v Rimmer (1968) 1 All ER 874, at 899.
(2) [1942] A– C 624. (3) “Evidence”, 3rd ed p 251.
(4) “see Phipson on Evidence”
(5) [1974] 2 S7 C C 472, at 483.
(6) [1973] A C at, 388.

In the same case, Lor Pearson observed that the expression ‘Crown privilege’ is not accur though sometimes convenient. Lord Simon of Claisdale observed in that case : “…. .’Crown privilege’ is a misnomer and apt to be misleading. ‘It refers to the rule that certain evidence is hadmissible on the ground that its adduction would be contrary to the public interest. It is not a privilege which may be waived by the Crown (see Marks v. Bayfus, 25 Q.B.D. 494 at p. 500) or by anyone else. The Crown has prerogatives, not previlege.”

I am not quite sure whether, in this area, there was any antithesi between prerogatives and privilege. I think the source of this privilege was the prerogatives of the Crown. “The source of the Crown’& privilege in relation to production of documents in a suit between subject and subject (whether production is sought from a party or from some other) can, no doubt, be traced to the prerogative right to prevent the disclosure of State secrets, or even of preventing the escape of inconvenient intelligence, regarding Court intrigue. As is pointed out in Pollock and Maitland’s History of English Law (2nd ed., Vol. I, p. 5 17), “the King has power to shield those who do unlawful acts in his name, and can withdraw from the ordinary course of justice cases in which he has any concern. If the King disseises A and transfers the land to X, then X when he is sued will say that he cannot answer without the King, and the action will be stayed until the King orders that it shall proceed.” We find similar principles applied to the non-disclosure of documents in the seventeenth and eighteenth centuries. In the report of Layer’s Case (1722), (16 How St. Tr. p. 294) the Attorney General claimed that minutes of the Lords of the Council should not be produced; and Sir John Pratt L.C.J. sup- ported the claim, additing that “it would be for the disservice of the King to have these things disclosed”. We recall Coke’s useful principle : Nihil quod inconvenience est licitum. It is true that in the preceding century the privilege was not upheld either in Strafford’s case (1640) 3 How, St. Tr. 1382, or in the case of Seven Bishops (1638) 12 How. St. Tr. 183, but these decisions were made in peculiar circumstances.”

[see “Documents Privileged in Public Interest”(1)]

But, with the growth of democratic government, the interest of the Crown in these matters developed into and became identified with public interest.

(1) 39 Law Quarterly Rev. 476, at pp 476-477. 355

In the early days of the nineteenth century, when principles of ‘public policy’ received broad and generous interpretation we find the privilege of documents recognized on the ground of public interest. At this date, public policy and the interest of the public were to all intents synonymous”.

(see “Documents Privileged in Public Interests” (supra)

The rule that the interest of the state must )not be put in jeopardy by producing documents which would injure it is in principle quite unconnected with the interests or claims of particular parties in litigation and indeed, it is a matter on which the judge should, if necessary, insist, even though no objection.is taken at all. This would show how remote the rule is from the branch of jurisprudence relating, to discovery of documents or even to privilege(1). So the mere fact that Saxena brought the documents to court in pursuance, to the summons and did not file an affidavit of the Minister or of the head of the department concerned claiming privilege would not mean that the right to object to any evidence derived from an unpublished official record relating to affair of state has been for ever waived. As no affidavit of the Minister or of the head of the department claiming privilege had been filed, it might be that a legitimate inteference could be made that the Minister or the head of the department concerned permitted the production of the document or evidence being given derived from it, if there was no other circumstance. But, Saxena stated that the Blue Book was a secret document and he had not been permitted by the head of the department to produce it. Though that statement was not really an objection to the production of the document which could be taken cognizance of by the court under s. 162 of the Evidence Act, it was an intimation to the Court that the head of the department had not permitted the production of the document in Court or evidence.derived from it being given. Whatever else the statement might indicate, it does not indicate that the head of the department had permitted the production or the disclosure of the document. In other words, from the statement of Saxena that the document was a ‘secret’ one and that he was not permitted to produce it in court, it is impossible to infer that the Minister or the head of the department bad permitted the document to be produced in court or evidence derived from it being given. Section 123 enjoins upon the court the duty to see that no one is permitted to give any evidence derived from unpublished official records relating to affairs of state unless permitted by the officer at the head of the department. The court, therefore, had a duty, if the Blue Book related to secret affairs of state, not to permit evidence derived from it being given. And, in fact, ‘the Court did not allow the production of the document, for, we find a note in the proceedings of the Court on 10-9-1973 stating that the “question about the production of this document in Court shall be decided after argument of the parties on the point is finally heard”.

(1)see : J.K.S. Simon, “Evidence Excluded by Consideration of State Interest”,

(1955) Cambridge L Journal, 62.

And before the arguments were finally concluded, Kaul, the officer at the head of the department, filed an affidavit claiming privilege. As the privilege could not have been waived, and as, before the objection to the production of the document raised by Saxena-whether tenable in law or not-was decided by the Court, an affidavit was filed by Kaul objecting to the production of the document and stating that the document in question related to secret affairs of state, the Court should have considered the validity of that objection under S. 162 of the Evidence Act.

In Crompton Ltd. v. Customs & Excise Comrs. (C.A.) (1), Lord Denning M.R. said that if a document is the subject of Crown Privilege, it cannot be adduced by either of the parties, that even if neither of the parties takes the objection, the Attorney General can come to the Court and take it and that the judge himself must take the objection if it appears to him that the production of the document would be injurious to public interest.

In Copway v. Binger & Anther(2) it was observed :

“I do not doubt that it is proper to prevent the use of any document, wherever it comes from, if disclosure of its contents would really injure the national interest and I do not doubt that it is proper to prevent any witness whoever be may be, from disclosing facts which in the national interest ought not to be disclosed. Moreover, it is the duty of the court to do this without the intervention of any Minister, if possible serious injury to the national interest is ,really apparent.

“I do not accept that in so important a matter, it could properly play about with formalities or regard itself as entering forbidden territory merely because a door had not been formally locked.”

The question then arises as to what exactly is the meaning of the expression “affairs of state”.

According to Phipson(3), witnesses may not be asked, and will not be allowed, to state facts or to produce documents the disclosure of which would be prejudicial to the public service, and this exclusion is not confined to official communications or documents, but extends to all others likely to prejudice the public interest, even when relating to commercial matters.

(1) [1972] 2 Q.B 102, at 134.

(3) “Phipson on Evidence”, 11th ed. p. 240. (2) [1968] A.C. 910.

He thinks that it is the duty of the court to prevent disclosure of facts where serious injury to the national interest would possibly be. caused, that in deciding whether a claim for Crown privilege should apply to a document, there are two kinds of public interest to be considered by the court, and they are : (1) the public interest that harm shall not be done to the nation or the public service; and (2) the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done; and that if a judge decided that, on balance, the documents probably ought to be produced, it would generally be, best that he should see them before ordering production. Cross says(1) that relevant evidence must be excluded if its reception would be contrary to state interest; but “state interest” is an ominously vague expression and it is necessary to turn to the decided cases in order to ascertain the extent to which this objection to the reception of relevant evidence has been taken. According to him, broadly speaking, the decisions fall under two heads-those in which evidence has been excluded because its disclosure would be injurious to national security (an expression which may be taken to include national defence and good diplomatic relations), and those in which evidence has been excluded because its reception would be injurious to some other national interest and that although the first group of decisions has not excited much comment, some of the cases included in the second may be thought to indicate an excessive concern for unnecessary secrecy.

In Sodhi Sukhdev Singh’s case (supra) this Court held that there are three views possible on the matter. The first view is that it is the head of the department who decides to which class the document belongs. If he comes to the conclusion that the document is innocent, he can give permission to its production. If, however, he comes to the conclusion that the document is noxious, he will withhold that permission. In any case, the Court does not materially come into the picture. The second view is that it is for the court to determine the character of the document and if necessary to enquire into the possible consequence of its disclosure. On this view, the jurisdiction of the court is very much wider. A third view which does not accept either of the two extreme positions would be that the court can determine the character of the document and if it comes to the conclusion that the document belongs to the noxious class, it may leave it to the head of the department to decide whether its production should be permitted or not, for, it is not the policy of s. 123 that in the case of every noxious document the head of the department must always withhold permission. The Court seems to have accepted the third view as the correct one and has said “Thus, our conclusion is that reading ss. 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 question. 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 s. 123 or not.”

(1) “Evidence” 3rd ed, p. 252.

As it was held in that case that the Court has no power to inspect the document, it is difficult to see how the Court can find, without conducting an enquiry as regards the possible effect of the disclosure of the document upon public interest, that a document is one relating to affairs of state as, ex- hypothesis a document can relate to affairs of state only if its disclosure will injure public interest. It might be that there are certain classes of documents which are per se noxio s in the sense that, without conducting an enquiry, it might be possible to say that by virtue of their character their disclosure would be injurious to public interest. But there are other documents which do not belong to the noxious class and yet their disclosure would be injurious to public interest. The enquiry to be conducted under s. 162 is an enquiry into the validity of the objection that the document is an unpublished official record relaing to affairs of state and therefore, permission to give evidence derived from it is declined. The objection would be that the document relates to secret affairs of state and its disclosure cannot be permitted; for, why should the officer at the head of the department raise an objection to the production of a document if he is prepared to permit its disclosure even though it relates to secret affairs of state ? Section 162 visualises an enquiry into that objection and empowers the court to take evidence for deciding whether the objection is valid. The court, therefore, has to consider two things; whether the document relates to secret affairs of state; and whether the refusal to permit evidence derived from it being given was in the public interest. No doubt, the, words used-in s. 123 “as he thinks fit” confer an absolute discretion on the head of the department to give or withhold such permission. As I said, it is only if the officer refuses to permit the disclosure of a document that any question can arise in a court and then s. 162 of the Evi- dence Act will govern the situation. An overriding power in express terms is conferred on the court under s. 162 to decide finally on the validity of the objection. The court will disallow the objection if it comes to the conclusion that the document does not relate to affairs of state or that the public interest does not compel its non-disclosure or that the public interest served by the administration of justice in a particular case overrides all other aspects of public interest. This conclusion flows from the fact that in the first part of s. 162 of the Evidence Act there is no limitation on the scope of the court’s decision, though in the second part, the mode of enquiry is hedged in by- conditions. It is, therefore, clear that even though the head of the department has refused to grant permission, it is open to the court to go into the question after examining the document and find out whether the disclosure of the document would be injurious to public interest and the expression “as he thinks fit” in the latter part of section 123 need not deter the court from deciding the question afresh as s. 162 authorises the court to determine the validity of the objection finally (see the concurring judgment of Subba Rao, J. in Sukhdev Singh’s case). It is rather difficult to understand, after a court has inquired into the objection and found that disclosure of the document would be injurious to public interest, what purpose would be served by reserving to the head of the department the power to permit its disclosure because, the question to be decided by him would practically be the same, namely, whether the disclosure of the document would be injurious to public Interests question already decided by the court. In other words, if injury to public interest is the foundation of this so-called privilege, when once the court has enquired into the question and found that the disclosure of the document will injure public interest and therefore it is a document relating to affairs of state, it would be a futile exercise for the Minister or the head of the department to consider and decide whether its disclosure should be permitted as be would be making an enquiry into the identical question. It is difficult to imagine that a head of the department would take the responsibility to come to a conclusion different from that arrived at by a court as regards the effect of the dis- closure of the document on public interest unless he has or can have a different concept of public interest. Few would question the necessity of the rule to exclude that whichwould cause serious prejudice to the state. When a question of national security is involved, the court may not be the proper forum to weigh the matter and that is the reason why a Minister’s certificate is taken as conclusive. “Those who are responsible for the national security must be the sole judges of what national security requires”(1). As the executive is solely responsible for national security including foreign relations, no other organ could judge so well of such matters. Therefore, documents in relation to these matters might fall into a class which per se might require protection. But the executive is not the organ solely responsible for public interest. It represents only an important element in it; but there are other elements, One such element is the administration of justice. The claim of the executive to have exclusive and conclusive power to determine what is in public interest is a claim based on the assumption that the executive alone knows what is best for the citizen. C The claim of the executive to exclude evidence is more likely to operate to subserve a partial interest, viewed exclusively from a narrow departmental angle. It is impossible for it to see or give equal weight to another matter, namely, that justice should be done and seen to be done. When there are more aspects of public interest to be considered, the court will, with reference to the pending litigation, be in a better position to decide where the weight of public interest predominates. The power reserved to the court is a order production even though public interest is to some ‘extent prejudicially affected. This amounts to a recognition that more than one aspects of public interest will have to be surveyed. The interests of government’ for which the Minister speaks do not exhaust the whole public interest. Another aspect of that interest is seen in the need for impartial ad- ministration of justice. It seems reasonable to assume that a court is better qualified than the Minister to measure the importance of the public interest in the case before it. The court has to make an assessment of the relative claims of these different aspect of public interest. While there are overwhelming arguments for giving to the executive the power to determine what matters may prejudice public security, those arguments give no sanction to giving the executive an exclusive power to determine what matters may affect public interest. Once considerations of national security are left out, there are few matters of public interest which cannot safely be discussed in public. The administration itself knows of many classes of security documents ranging from those merely reserved for official use to those which can be seen only by a handful of Ministers of officials bound by oath of secrecy. According to Wigmore, the extent to which this privilege has gone beyond “secrets of State” in the military or international sense is by no means clearly defined and therefore its scope and bearing are open to careful examination in the light of logic and policy. According to him, in a community under a system of representative government, there can be only few facts which require to be kept secret with that solidity which defies even the inquiry of courts of justice. (1)

(1) Lord Parker of Weddington in The Zemora [1916] 2 A C 77, at 107.

In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can but few secrets. The people of this country have a right to know every public act, everything, that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security (2) . To cover with veil secrecy the common routine business, is not in the interest of the public. Such secrecy can seldom be legiti- mately desired. It is generally desired for the purpose of parties and politics or personal self-interest or bureaucratic routine.

The responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption.

“Whether it is the relations of the Treasury to the Stock Exchange, or the dealings of ;the Interior Department with public lands, the facts must constitutionally be demandable, sooner or later, on the floor of Congress. TO concede to them a sacrosanct secrecy in a court of justice is to attribute to them a character which for other purposes is never maintained a character which appears to have been advanced only when it happens to have served some undisclosed interest to obstruct investigation into facts which might reveal a liability(3)”

To justify a privilege, secrecy must be indispensable to induce freedom of official communication or efficiency in the transaction of official business and it must be further a secrecy which has remained or would have remained inviolable but for the compulsory disclosure. In how many transactions of official business is there ordinarily such a secrecy? If there arises at any time a genuine instance of such otherwise inviolate secrecy, let the necessity. of maintaining it be determined on its merits (4).

(1) see “Evidence”, 3rd ed, Vol 8, p 788.

(2) see New york Times Co V. United States, 29 L Ed 822, 403 U S 713.

(3) gee “Wigrnore on Evidence”, 3rd ed-, Vol 8, page 790.

(4) [1931] A. C. 704 at 798.

Lord Blanesburgh said in Robinson v. State of South Australia (4) the privilege is a narrow one, most sparingly to be exercised, that its foundation is that the information cannot be disclosed without injury A, to the public interests and not that the documents are confidential or ,official which alone is no reason for their non-production. He further said that in view of the increasing extension of state activities into spheres of trading, business and commerce, and of the claim of privilege in relation to liabilities arising therefrom, the courts must duly safeguard genuine public interests and that they must see to it that the scope of the admitted privilege is not extended in such litigation.

There was some controversy as to whether the court can inspect the document for the purpose of coming to the conclusion whether the document relates to affairs of state. In Sodhi Sukhdev Singh’s case, this Court has said that the court has no power to inspect the document. In the, subsequent case (Amar Chand Butail v. Union of India and Others(1), this Court held that the normal method of claiming privilege was by an affidavit sworn by the head of the department and that, if no proper affidavit was filed, the claim for privilege was liable to be rejected. But, this Court inspected the document to see whether it related to affairs of state. It might be that the court wanted to make sure that public interest is protected, but whatever be the reason, the court did exercise the power to inspect the document.

In England, it is now settled by the decision in CO Rimmer (2) that there is residual power in court to decide disclosure of a document is in the interest of the public purpose, if necessary, to inspect the document, and that the of the, head of the department that the disclosure would injure public interest is not final.

In Robinson’s case, (Supra) the Privy Council took the view that the court has power to inspect the (document in order to decide the question whether it belongs to one category or the other.

It is also noteworthy that Lord Denning, M. R, in his dissenting judgment in the Court of Appeal in Conway v. Rimmer has referred to the decision in Amar Chand Butail v. Union of India and Others’ (supra) and said that the Supreme Court of India also has come round to the view that there is a residual power in the court to inspect a document to decide whether its production in court or disclosure would be injurious to public interest.

Probably the only circumstances in which a court will not insist on inspection of the document is that stated by Vinson, C. J. in United States v. Revenolds(3) : “Regardless of how it is articulated, some like formula of compromise must be applied here. Judicial control over evidence in a case cannot be abdicated to the caprice of executive officers. Yet we will not go so far as to say that the court may automatically require a complete disclosure to the judge before the claim of privilege will be accepted in any case. It may be possible to satisfy the court from all the circumstances of the base, that there is a reasonable danger that compulsion of evidence will expose military matters which, in the interest of national security, should not be divulged When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone in chambers.”

(1) A I R 1964 SC 1658.

(2) [1968] 1 All E R 874.

(3) [1952] 345 U S 1.

I do not think that there is much substance in the contention that since, the Blue Book had been published in parts, it must be deemed to have been published as a whole and, therefore, the document could not be regarded as an unpublished official record relating to affairs of state. If some parts of the document which are innocuous have been published, it does not follow that the whole document has been published. No authority has been cited for the proposition that if a severable and innocuous portion of a document is published, the entire document shall be deemed to have been published for the purpose of S. 123. In regard to the claim of privilege for the document summoned from the office of the Superintendent of Police, Rai Bareily, the High Court has only said that all the instructions contained in the file produced by the Superintendent of Police were the same as those contained in the Blue Book and since no privilege in respect of the Blue Book could be claimed, the Superintendent of Police could not claim any privilege, in respect of those documents. It is difficult to under:stand how the High Court got the idea that the papers brought from the office of the Superintendent of Police contained only instructions or materials taken from the Blue Book. Since the court did not inspect the Blue Book, the statement by the court that the materials contained in the file produced by the Superintendent of Police were ,taken from the Blue Book was not warranted.

I am not satisfied that a mere label given to a document by the .executive is conclusive in respect of the question whether it relates to affairs of state or not. If the disclosure of the contents of the document would not damage public interest, the executive cannot label it in such a manner as to bring ‘it within the class of documents which ,are normally entitled to protection. N6 doubt, “the very description-of the documents in the class may suffice sometimes to show that they should not be produced such as Cabinet papers” (see per Lord Danning, M.R. in In re Grosvenor Hotel, London (No. 2) (1). Harman, L. J. said(2) in that case : “the appellants’ real point is that since Duncan’s Case(3) there has grown up a practice to lump documents together and treat them as a class for which privilege is claimed and that this depends on dicta pronounced on what is really a different subject-matter which are not binding on the court and are wrong.” In Conway v. Rimmer(4) Lord Reid said : “I do not doubt that there are certain classes of documents which ought not to be disclosed whatever their content may be” and referred to cabinet minutes as belonging to that class. Lord Upjohn said(5) if privilege is claimed for a document on the ground of ‘class’ the judge, if he feels any doubt about the reason for its inclusion as a class document, should not hesitate to call for its production for his private inspection, and to order and limit its production if he thinks fit.”

(1) [1965] 1 Ch- 1210, at 1246.

(2) ibid at p 1248.

(3) [1948] A: C– 624.

(4) [1968] 1 All E R 874, at 888.

(5) ibid at p 915.

In the same case Lord Hodson said(1) : “I do not regard the classification which places all documents under the heading either of contents or class to be wholly satisfactory. The plans of warships, as in Duncan’s case and documents exemplified by cabinet minutes are to be treated, I think, as cases to which Crown privilege can be properly applied as a class without the necessity of the documents being considered individually. The documents in this case, class documents though they may be, are in a different category, seeking protection, not as State documents of political or strategic importance, but,as requiring protection on the ground that ‘candour’ must be ensured.”

I would set aside the order of the High Court and direct it to consider the matter afresh. The High Court will have to consider the question whether the documents in respect of which privilege had been claimed by Mr. R. K. Kaul, Home Secretary and the Superintendent of Police relate to affairs of state and whether public interest would be injuriously affected by their disclosure.

If the averments in the affidavits are not full or complete, the court will be at liberty to call for further affidavits. If, on the basis of the averments in the affidavits, the court is satisfied that the Blue Book belongs to a class of documents, like the minutes of the proceedings of the cabinet, which is per se entitled to protection, no further question will arise in respect of that document. In such case, no question of inspection of that document by court will also arise. If, however, the court is not satisfied that the Blue Book does not belong to that class and that averments in the affidavits and the evidence adduced are not sufficient to enable the Court to make up its mind that its disclosure will injure public interest, it will be open to the court to inspect the document for deciding the question whether it relates to affairs of state and that its disclosure will injure public interest. In respect of the other documents, the court will be at liberty to inspect them, if on the averments in the affidavits or other evidence, it is not able to come to a conclusion that they relate to affairs of state or not.

if, on inspection, the court holds that any part of the Blue Book or other document does not relate to affairs of state and that its disclosure would not injure public interest, the court will be free to disclose that part and uphold the objection as regards the rest provided that this will not give a misleading impression. Lord Pearce said in Conway v. Rimmer(1) “if part of a document is innocuous but part is of such a nature that its disclosure would be undesirable, it should seal up the latter part and order discovery of the rest, provided that this will not give a distorted or misleading impression.”

(1) bid at p. 905.

The principle of the rule of non-disclosure of records relating to affairs of state is the concern for public interest and the rule will be applied no further than the attainment of that objective requires(2).

I would allow the appeal.

P.B.R.

Appeal allowed.

(1) [1968] 1 All E.R. 874, at 911.

(2) see Taylor on Evidence, p. 939.

 

source :

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