Amar Chand vs Sukh Ram

Chet Ram Thakur, J.—In this election petition by Shri Amar Chand challenging the election of Shri Sukh Ram respondent, he had summoned some documents from various offices to prove the corrupt practices on the part of the respondent. When summons were issued for causing the production of these documents to the official witnesses, they appeared and stated that the Government did not permit them to produce the documents and on a subsequent date affidavits were filed claiming privilege against the production of these documents. Affidavits were filed by Sarvshri P.K. Mattoo, Secretary Forest Department and Ganesh Misra, Secretary to the Government Animal Husbandry Department of the State of Himachal Pradesh.

The petitioner had summoned the following documents vide list dated 27th October, 1972:

(a) Original letter of Shri Sukh Ram ex-Industries Minister or his P.A. or P.S. regarding sanctioning Veterinary Dispensary at village Kotmoras, Tehsil Sadar, District Mandi.

(b) Original letter of Shri Sukh Ram ex-Industries Minister or his P.A. or P.S. regarding sanctioning'', Veterinary Dispensary at village Padiun, Tehsil Sadar, District Mandi.

(c) Orders for sanctioning the dispensaries--the file containing the said orders.

(a) Original lease in respect of lot No. 3/71-72, Mandi district, Bilaspur Circle between Shri Prem Singh and Co. through Prem Singh son of Lal Singh and the forest Department, dated 26-8-1971.

(b) Original contract regarding sale of tree to M/s Prem Singh and Co. executed in the year 1970 or 1971-72 between Prem Singh and the Forest Department.

(c) Original letter, dated 21-2-1972 issued by Industries Minister, signed by P.A. to Industries Minister, in relation to Ghasni Rutas to be issued in favour of Bhagat Ram, Hem Chand, Siri Ram Rana Bhagat Ram, Chamakar, Laid Ram and Param Dev addressed to D.F.O. Mandi, Forest Division Mandi.

(d) Original of endorsement, dated 19-2-1972 by Private Secretary to Industries Minister on application of Shri Balak Ram, dated l-6-1971 regarding grant of Ruta, addressed to D.F.O. Mandi Division, No. 15/IM/Tour/72.

(e) Original of memo. No. 5221/R.H.P. Forest Department, dated 23-2-1972 Mandi along with endorsement No. 5222/R, dated 23-2-1972 signed by D.F.O. Mandi.

(f) Emtire record relating to sanction of trees from jungle Brehal in Hasu Bohar, Tehsil Sadar, District Mandi in favour of Sarvshri Hem Chand, r/o village Brehal, Churghu, resident of village Sewaloadar, Sangroo, resident of village Sewa, Titla, resident of village Brehal, Sawn Khiramani, resident of village Brehal, Ladroo, resident of village Brehal and Nagroo, resident of village Brehal.

(g) Original order/directions of C.C.F., H.P. that Ghasni Rutas should not be issued on permits.

It has been laid down in the State of Punjab v. Sodhi Sukhdev Singh the State of Maharashtra Intervener (A.I.R. 1961 S.G. 493) as follows:

A privilege against the production of document should not be claimed u/s 123 because it is apprehended that the document if produced would defeat the defence raised by the State. It must be clearly realised that the effect of the document on the ultimate course of litigation or its impact on the head of the department or the Minister in charge of the department, or even the Government in power, has no relevance in making a claim for privilege u/s 123. The apprehension that the disclosure may adversely affect the head of the department or the department itself or the Minister or even the Government, or that it may provoke public criticism or censure in the legislature has also no relevance in the matter and should not weigh in the mind of the head of the department who makes the claim. The sole and the only test which should determine the decision of the head of the department in injury to public interest and nothing else.

Since it is not unlikely that extraneous and collateral purposes may operate in the mind of the person claiming the privilege it is necessary to lay down certain rules in respect of the manner in which the privilege should be claimed. In such cases the privilege should be claimed generally by the Minister in charge who is the political head of the department concerned; if not, the Secretary of the department, who is the departmental head should make the claim; and the claim should always be made in the form of an affidavit. When the affidavit is made by the Secretary, the Court may, in a proper case, require an affidavit of the Minister himself. The affidavit should show that each document in question has been carefully read and considered, and the person making the affidavit is satisfied that its disclosure would lead to public injury. If there are a series of documents included in a file it should appear from the affidavit that each one of the documents, whose disclosure is objected to has been duly considered by the authority concerned. The affidavit should also indicate briefly within permissible limits the reason why it is apprehended that their disclosure would lead to injury to public interest. This last requirement would be very important when privilege is claimed in regard to documents which prima facial suggest that they are documents of a commercial character having relation only to commercial activities of the State. If the document clearly falls within the category of privileged documents no serious dispute generally arises; it is only when Courts are dealing with marginal or border line documents that difficulties are experienced in deciding whether the privilege should be upheld or not, and it is particularly in respect of such documents that it. is expedient and desirable that the affidavit should give some indication about the reason why it is apprehended that public interest may be injured by their disclosure.

If the affidavit produced in support of the claim for privilege is found to be unsatisfactory a further affidavit may be called, and in a proper case the person making the affidavit whether is a Minister or the Secretary should be summoned to face cross-examination on the relevant points. It would be open to the opponent to put such relevant and permissible questions as he may think of the help the Court in determining whether the document belongs to the privileged class or not. It is true that the scope of the inquiry in such a case is bound to narrow and restricted but the existence of the power in the Court to hold such an enquiry will itself act as a salutary check on the capricious exercise of the power conferred u/s 123, and the existence of this power is not merely a matter of theoretical abstraction.

This very authority has been followed subsequently in Sujit Kantha Neogi and Anr. v. Union of India and Ors. (A.I.R. 1970 GAU 131).

In view of the settled law in the case of unpublished official records relating to any affairs of tin-State, no documents can be permitted to be brought in evidence 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. It is also clear that in holding an enquiry into the validity of the objection u/s 123 the Court cannot permit any evidence about the contents of the documents, nor it would enter into an enquiry whether the disclosure of the documents would cause injury to the interest of the State. But this thing is definite that the Court is competent and is bound to hold an 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 affair of State u/s 123 or not. In other words, the Court has to determine the character or the nature of the document. If the Court comes to the conclusion that the document does not relate to the affairs of the State then the claim of privilege must be rejected and the person claiming the privilege must be directed to cause the production of the document, and if it is held otherwise, then the claim of privilege cannot further be probed and the Court must stay back its hands from causing the production of the document and the claim for privilege must be upheld without any-thing further.

In the instant case, the documents, as already given above, relate to the opening of dispensaries at villages Kotmoras and Padiun. The second category of documents pertain to the sanctioning of the Ghasni Rutas by the Industries Minister, i.e., Shri Sukh Ram respondent, to various persons.

In the first category privilege has been claimed against the production of three documents styled as:

(i) Secretary A.H. No. INDM (PS)-23/71,

dated, Simla-2, the 7-2-1972.

(ii) Secretary, A.H. No. INDM (PS)-23/71, dated, Simla-2, the 18-2-1972.

(iii) No. 3-2/71-A.H. (Sectt.) dated 21st January, 1972 from the Deputy Secretary (A.H.).

In the list filed by the petitioner there are no details of the documents, inasmuch as there are no dates when those letters were sent by the Minister, or his P.A. or the Private Secretary regarding the sanctioning of veterinary dispensaries in any of the villages mentioned in the list. The list is quite vague without giving the full particulars. The petitioner has called for the entire file in which the orders for sanction of the dispensaries were passed. In so far as the office styled as, etc, are concerned they are undoubtedly unpublished official records pertaining to the affairs of the State which cannot be ordered to be produced. However, the orders, whereby the dispensaries were sanctioned cannot be said to be the documents which may come within the category of privileged documents. It is only the noting portion, which led to the opening of these dispensaries because that would give an insight into the policy of the Government and which policies cannot be reviewed by the Court. Therefore, I uphold the objection of the State in respect of items (a) and (b), but in respect of item (c) the same cannot be held immune and must be produced in evidence.

The privilege has been claimed in respect of documents mentioned in items Nos. 2(c) to 2(f) of the list, dated 27-10-1972. Item (c) relates to the original letter issued by the Industries Minister, signed by P.A. to Industries Minister relating to the Ghasni Rutas to be issued in favour of Bhagat Ram and Hem Chand, etc. To the similar effect arc the items (d) to (e). All these relate to the correspondence that was exchanged between the various Sections of the Forest Department. Then these are notings of various officers in the office. These notings and the correspondence exchanged from time to time with regard to the sanction of the Ghasni Rutas also cannot be called in Court because it is an unpublished official record which lays down the policy of the Government with regard to the grant of Rutas. Therefore, such documents are really unpublished official records relating to the affairs of the State. Once it is held that they relate to the affairs of the State, then it is for the head of the department to claim privilege and the Court cannot compel the production of the same.

Item (f) also relates to the sanctioning of trees from the jungle Brehal. In this item the petitioner has sought the production of the entire record relating to the sanction of the trees. The entire record cannot be summoned as it contains the notings, instructions and the correspondence which is of a secret nature, and cannot be probed into. It definitely falls within the category of an unpublished official record relating to the affairs of the State, and as such it cannot be compelled to be produced in the Court.

The learned Counsel for the petitioner has also Kotah Match Factory Kotah Vs. State of Rajasthan, to show as to what does the expression "affairs of the State" means. According to this Division Bench authority the document which embodies the minutes of the discussion between private party and the State Minister and which indicates the advice given by the Minister is certainly protected u/s 123 of the Evidence Act. Relying on The State of Punjab Vs. Sodhi Sukhdev Singh, it also held that on account of changed conception of the functions of the State, the State in pursuit of its welfare activities which were in the past treated as purely commercial matters, is apt to claim the privilege relating to the affairs of the State in accordance with Section 123 of the Evidence Act. Reliance is also placed on Bhanu Parkash v. The State of Punjab 1968 CriL.J. 990 , where the papers which contained the noting by the various officers and communications made in official confidence from one officer to another were not produced before the trial Court by the Government, claiming privilege u/s 123 of the Evidence Act and the trial Court allowed the plea of privilege but in revision the question arose whether the privilege could be claimed by the Government, the Punjab and Haryana High Court following the dictum given in The State of Punjab Vs. Sodhi Sukhdev Singh, held that under the circumstances the view of the trial Court allowing privilege to the Government was well founded and consequently the order of the trial Court was valid. The Full Bench of the Delhi High Court in H.L. Radhey and Ors. v. Delhi Administration and others ( AIR 1969 Del 246) also took a similar view in a case where a Government employee who had challenged his reversion from officiating post sought the production of connected files and documents and on privilege being claimed by the administration from the production of the document, the plea of privilege was upheld by the Court holding that the non-disclosure of the document was necessary for the proper functioning of the public service and the disclosure of which would affect the freedom and candor of expression of the public servant and would, thus cause injury to the public interest.

The learned Counsel for the petitioner also relied on the principle laid down in the The State of Punjab Vs. Sodhi Sukhdev Singh, and the only thing that was pointed out by the learned Counsel was that the Court should determine the character and nature of the documents before the claim of privilege of the opposite party could be upheld against the production of the documents in the Court. In this regard I have already observed that the Court is precluded from inspecting the documents and it can only take collateral evidence or can direct the person who filed the affidavit to appear for purpose of cross-examination, but the counsel did not make any prayer that the deponent may be asked to appear for cross-examination before the Court could determine the character and nature of the document. Further, from the cursory reading of the particulars given in the list, what I have been able to gather is that the documents fall within the category of unpublished official records, inasmuch as they all relate to correspondence, noting, etc. and the disclosure of the entire record would definitely be injurious to the interest of the State.

The next submission made by the learned Counsel for the petitioner was that these orders were made by the respondent only after the gazette notification for the Assembly elections had been published. There is no doubt that these sanction orders have been passed only after the notification of elections to the Assembly had been published, but the learned Counsel has not been able to point out as to whether a Minister when he is holding the office is precluded from passing any such orders before he vacates the office or during the continuance of office and before the conclusion of the next elections. It may be that propriety demands that he should not pass any such orders with the object of showering some benefits and favors to his electorates. At this stage we are not concerned as to what is the effect of this kind of deal, if any, on the part of the Minister, but with what we are concerned at present is whether the documents relate to any affairs of the State or not. Therefore, this point has got no relevancy for the present purpose, and I uphold the plea of privilege of the learned Advocate-General. The documents excepting the production of the sanction orders of the veterinary dispensaries, cannot be ordered to be placed in Court as they are all unpublished official records pertaining to the affairs of the State.

The result, therefore, is that the application is allowed to the above extent. I pass no orders as to the costs.