In Re: Killi Suryanarayana Naidu

Ramaswami, J.—This civil revision petition has been filed against the order made by the learned District Munsif of Srikakulam in I. A. No.

693 of 1952 in O. S. 207 of 1952.

The facts are: The defendants in this suit sent a petition to the Taluk Supply Officer, Amadalavalsa, dated 10-2-1951 attributing black marketing

activities to the plaintiff Killi Surva-narayana Naidu, the petitioner before us. Thereupon a confidential departmental enquiry had been held

apparently to find out whether there was any substance in the allegations so that in the event of there being no substance in the petition the matter

might be dropped or in the event of there being any substance action might be taken by a complaint being laid before the Police. We do not know

the fate of this enquiry. This plaintiff thereupon has filed the suit Order 8. No. 207 of 1952 for defamation and recovery of damages of Rs. 1000.

This plaintiff summoned for the statements made by the defendants on 19-2-1951, 21-2-1951 and 25-4-1951 to the Taluk Supply Officer,

Amudalavalasa.

Thereupon the learned District Munsif and the Collector of Srikakulam correctly followed the procedure"" set out by me in -- P.S.

Narayanaswamy Vs. The State of Madras, . The summons was sent to the Collector and thereupon the Collector has applied his mind to the

documents sought to be disclosed. He has claimed privilege by means of a communication in the form of an affidavit by his Personal Assistant, who

is in charge of the records indicating why he was claiming privilege. The Personal Assistant to the Collector who is of the rank of a Deputy

Collector and is in charge or the office of the Collector has sworn that the disclosure of the records would be prejudicial to public interest as

Purushottapuram village to which the parties belong is a factious village and the publication to the statements given by witnesses and the official

reports will aggravate the dispute in the village.

The records were also sent in a sealed cover through an officer of the department claiming privilege. The learned District Munsif thereupon has

applied his mind to find out whether the claim is not arbitrary and capricious but well founded. He writes

I opened the sealed cover and on a perusal of the entire file thereon, I agree with the opinion of the Collector that the publication to the statements

of witnesses at the enquiry by the Taluk Supply officer would be prejudicial to public interest.

Therefore he dismissed the petition and hence this civil revision petition.

In this revision three points are urged, viz., that the privilege has been claimed by the Personal Assistant to the Collector and hot by the

Collector and therefore the privilege was not claimed by the head of the Department; secondly, that the learned District Munsif has not applied his

own mind; and thirdly that these statements are not communications made to a public officer in official confidence. In my opinion these three points

neither singly nor cumulatively have got any substance.

POINT 1: I have mentioned how the Collector to whom the summons was sent has claimed privilege by means of an affidavit through his

personal Assistant who is in direct charge of the records and how the records have been sent in a sealed cover to Court. Section 123, Evidence

Act, only requires that the privilege should be claimed by the Head of the Department and not that the affidavit should be sworn to by him. The use

of the word ""concerned"" in relation to the Head of the Department shows that the affidavit must contain a sworn statement by the Head of the

department in whose custody the document happened to be at the time when discovery and production are claimed. There is no substance in this

point.

POINT 2: There seems to be some confusion as to the exact nature of the question to be decided by the court. The question whether a

communication was made in official confidence is for the court to decide; but the public officer concerned is the sole judge of whether it should or it

should not be disclosed. The court may adopt any procedure that it considers suitable in the circumstances to satisfy itself whether the document

for which the privilege is claimed is a communication made in official confidence. This the court has done in this case by going through the entire''

file and from the order it is clearly inferable, though it would have been better if it had been made more explicit that the court found that the

documents in question were communications made to a public officer in official confidence. Then it would not have been necessary for the court to

have expressed its supererogatory opinion whether it agreed or did not agree with the collector that the communication should not be disclosed

because the public officer concerned is the sole judge of whether it should or it should not be disclosed.

POINT 3: It is contended before me that the documents in question are hot communications made in official confidence to a public officer. In

regard to this courts have adopted a basic principle for deciding whether a particular document is a communication made in official (confidence to

a public officer or not, viz., whether the document produced or the statement made was under the process of law or not. If the former is the case,

courts have held that it would be difficult to say that a document produced or statement made under the process of law is a communication made in

official confidence. If on the other hand a document is produced or a statement is made in a confidential departmental enquiry not under process of

law but for the gathering of Information by the department for guiding them in the future action if any they have got to take, it would be a case of

communication made in official confidence. Once this basic principle is borne in mind it will not be difficult to follow the line of decisions on this

point.

Thus, returns submitted to an Income Tax collector, any statement made before him, or any order that may be made by him, are not privileged

under Sections 123 and 124, Evidence Act; -- Bhalchandra Dattatraya Bubane Vs. Chanbasappa Mallappa Warad, ; -- ''Venkatachala Chettiar

v. Sampathu Chettiar'', 32 Mad 62 (C). See also -- ''Jadobram Dev v. Bulloram Dev'', 26 Cal 281 (D). The privilege cannot be claim- ed in

respect of a statement recorded in the course of an investigation by a forest range officer: -- In Re: Kaliyappa Udayan, . Statements made by

witnesses in an investigation made by the Civil Inspector under the Code of Criminal Procedure cannot be considered to be statements made in

official confidence -- Natha Apparao Vs. Narulasetti Suryaprakasa Rao, ''Emperor v. Kistayya'', 1935 Mad WN 1282 (G). The basic principle in

all these cases is that the enquiry or investigation was under process of law. On the other hand, a confidential report submitted,'' as a result of a

confidential enquiry held under the orders of a railway officer to enable him to take departmental action is a privileged document falling within the

purview of Section 124, Evidence Act; -- ''Emperor v. Mir Mohamed Shah'', Am 1935 Sind 50 (H). A report of enquiry under para. 900 of the

Jail Manual submitted by the inquiring officer to the Inspector General of Prisons is a state document and privileged u/s 123, Evidence Act, and the

statements of witnesses incorporated therein are also privileged: -- ''Emperor v. Nanda Singh'', AIR 1925 Oudh 640 (I). where a proprietor wants

his estate to be taken over by the Court of Wards, the statements made to the Collector showing the financial position, liability etc., are privileged

communications; -- The Collector of Jaunpur Vs. Jamna Prasad, . It will be noticed that these enquiries and investigations were not under process

of law.

Therefore, I hold that u/s 124, Evidence Act, the communications sought to be disclosed are of the nature covered by the said section and

therefore the provisions of that section have got to be applied.

In the result, this civil revision petition is dismissed.