In Re: S.S.M. Subramaniam Chettiar

Sadasivam, J.—Petition by accused i to 3 in P.R.C. 9 of 1965 on the file of the Special District Magistrate, Coimbatore, to revise the order

of the said Magistrate rejecting their applications for grant of copies of statements of witnesses examined before the District Revenue Officer,

Salem.

Petitioners are being proceeded against for charges of rioting, criminal trespass, mischief, attempt to murder etc., alleged to have been

committed by them during the Anti-Hindi agitation on 10.2-1965 at Komarapalayam. There was an enquiry by the District Revenue Officer in

respect of the Anti-Hindi agitation and rioting on 10.2.1965, and statements of witnesses were recorded by him. The learned Public Prosecutor

raised some doubt, whether the said enquiry was under P. S. O. 145, corresponding to the old P. s. o. 167. But it is clear from the prior order of

the Special District Magistrate, which came up in revision before me, that the contention of the Special Public Prosecutor was that the enquiry

made by the D. B. O. was one under P. S. O. 145. The D. B. O. filed an affidavit that it was not a judicial or a quasi judicial enquiry, that the

enquiry was not conducted under any Statute and that the enquiry was only a fact finding enquiry ordered under the executive instructions of the

Government with the object of ascertaining whether the opening of fire by the police was justifiable or not. Originally, privilege was claimed under

123 of the Indian Evidence Act on the strength of the affidavit of the D. B. O. and it was upheld by the Special District Magistrate. In Cri. R.C.

52 of 1966 I set aside the order on the ground that the privilege should be claimed by the Head of the Department, as held by the Supreme Court

in The State of Punjab Vs. Sodhi Sukhdev Singh, , But, when the matter went back before the Special District Magistrate, the privilege u/s 123

was not pressed, but privilege was claimed u/s 134 of the Evidence Act.

The copy applications filed by the petitioners were not only in respect of prior statements recorded in the enquiry under P.S.C. 145 of persons

who were to be examined as witnesses in the P. B. C, cases, but also of reports made by the D. B. 0. But the reports are confidential

communications by the D. R. O. to the Government and the privilege claimed in respect of the same cannot be and was not disputed. Hence the

only question to be considered in this petition is whether there could be any privilege in respect of the statements of witnesses recorded by the D.

R. O.

The object of the enquiry under P. S. O. 145 is no doubt different from the object of the investigation of the charges against the petitioners for

criminal offences alleged to have been committed by them. It is true that the enquiry under P. S. O.145 against the conduct of police officials, and

the investigation of case against the petitioners, are in respect of the same occurrence, namely, the rioting which took place on 10-2-1965 at

Komarapalayam. There is conflict of judicial opinion as to the nature of the enquiry under P. S. C. 145. In In Re: Veerappan, , it was held by

Kupposwami Iyer J. that where a Sub. Divisional Magistrate holds an enquiry and examines a large number of witnesses on oath and passes an

order under P. S. 0. 157 (corresponding to the present P. S. O. 145) there is a judicial enquiry by the Sub-Divisional Magistrate, as defined in

Section 4 (m) Cri. P. C., and therefore, the order is one revisable u/s 435, Cri. P. C. and that it cannot be said that the enquiry by the Magistrate

under P. S. C. 157 is only a departmental one against which no revision lay. But in P. Rajangam, Sub-Inspector of Police and Others Vs. State of

Madras and Others, it was held that the view of Kuppuswami Iyer J., in the above decision as to the rights of this Court to interfere in revision in

respect of proceedings under P. S. O. 157 is not correct as the magistrate holding the enquiry under P. S. O. 157 though exercising the powers u/s

176 Cri. P. C., is not acting as a court. It was held in that decision that the enquiry under P. S. C. 157, which is in the nature of executive

instructions to implement the enquiry u/s 176 Cri. P. C., is only a fact binding enquiry. In The State of Andhra Pradesh Vs. N. Venugopal and

Others, it was held that P. S. O. 145 has not the force of law as it was not issued under any statutory authority, but is only an executive instruction

and that non-compliance with the same would not render the investigation of ft case illegal. But ... if the enquiry is really one u/s 176, Cri P. C.,

copies of depositions of witnesses taken in such an enquiry should be furnished to the accused as held in In Re: P.S. Venkataramana Rao, . The

fact that the enquiry under P.S.O.145 is not a statutory enquiry would not then really affect the question. It could not however be said that every

enquiry under P. S. O., 145 is in respect of an enquiry u/s 176 Cri. P. C., which relates only to cases of suspicious death. The question whether a

party would be entitled to copies of documents in the enquiry under P. S. O. 145, would, there, fore, depend on the facts and circumstances of

each case.

Mr. S. Govind Swaminathan, appearing for the petitioners, relied on the decision in Skaria Vs. Narayanan, , in support of his contention that the

words ""official confidence"" in Section 124 of the Evidence Act indicates that the section applies to communications from one public officer to

another public officer in the discharge of their official duties, and not communications to such officers by outsiders. It is true two decisions of our

High Court are referred to in support of this view. In Nagaraja Pillai and Another Vs. The Secretary of State for India in Council, a Bench of this

Court held that the object of Section 124 of the Evidence Act was to prevent disclosures to the detriment of public interests and that the decision

as to such detri-merit rested with the officer to whom the communication was made and did not depend on the Special use of the word

confidential"". In referring to the words ""communications in official confidence"" Old field J. observed that they import no special degree of secrecy

and no pledge or direction for its maintenance, but include generally all matters communicated by one officer to another in performance of their

duties. It should be noted that the case related to the production of a report by a supervisor to the Sub-Divisional Officer. The decision in K.S.

Venkatesam Naidu and Sons, Madras Vs. State of Madras, also related to inter-departmental correspondence between the Officers of

departments of Government and it was held that the Government could not be compelled to produce them when it claimed privilege. B. 124 of the

Evidence Act merely refers to privilege in respect of communications made to a public officer in official confidence, and there is nothing in the

section to restrict the scope of the section to communications by public officers. It is not possible to infer from the words ""official confidence"" that

Section 124 is intended to protect only communications by one official to another. There may be cases in which a private person may make a

communication to a public officer in official confidence and it could not be said that the public officer cannot claim privilege in respect of the same.

There are several cases in which such claims in respect of communications by private persons to public officials have been upheld u/s 124 of the

Evidence Act. Thus In Re: Killi Suryanarayana Naidu, the privilege claimed was in respect of statements made by the defendants in the suit to the

Taluk Supply Officer and it was held that the communications sought to be disclosed were in the nature covered by Section 124 of the Evidence

Act, and the privilege claimed was upheld. I am, therefore, unable to accept the wide proposition put forward by the learned advocate for the

petitioners that as the statements were made by the witnesses, who are private persons, to the D. B. O., they cannot come within the ambit of

Section 124 of the Evidence Act.

The learned Public Prosecutor urged that as the enquiry under P. S. O. 145 is of a confidential nature, privilege can be claimed u/s 124 of the

Evidence Act in respect of every statement made by every witness in such an enquiry. I am unable to accept even this wide proposition of the

learned Public Prosecutor. I have already pointed out that the nature of the enquiry under P. S. O. 145 should first be deter, mined and then the

statement of every witness considered individually to find out whether they were made in official confidence. In The State of Punjab Vs. Sodhi

Sukhdev Singh, at p. 504, Gajendragadkar J., has pointed out as to how the privilege should be claimed in respect of each document, it is pointed

out in that decision that the affidavit claiming privilege should show that each document in question had been care-fully read and considered and the

person making the affidavit was satisfied that its disclosure would lead to the public injury and that if there are series of documents included in a file,

it should appear from the affidavit that each one of the documents, whose disclosure is objected to, had been duly considered by the authority

concerned and that the affidavit should also indicate, briefly, within permissible limits, the reason why it was apprehended that their disclosure

would lead to injury to public interest.

In the present case, the statements made by the witnesses are in respect of an occurrence which took place on 10.2.1965 at Komarapalayam.

It is clear from the records in this case that the enquiry was held in open and witnesses were examined in the presence of others. In fact, the

petitioners were permitted to inspect the statements, and they were actually furnished with a copy of the statement of one of the witnesses. I gave

time to the learned Public Prosecutor to go through the statements given by the witnesses before the D. R. O. to find out whether any

communication was made by any of the witnesses in official confidence to the D. R. O. and the learned Public Prosecutor was not able to point out

any such statement in the recorded statements of any of the witnesses Having regard to the above facts there could be no question of privilege u/s

124 of the Evidence Act in respect of the statements made lay witnesses to the D. R. O. in respect of the occurrence on 10-2-1965 at

Komaraiialayam, which also forms the subject-matter of enquiry in the case against the petitioners. In practice copies of statements of witnesses in

the enquiry under P. S. O. 145 are furnished to accused charged with offences arising out of the occurrence which formed the subject of the earlier

enquiry. It is true the scope of the enquiry under P. S. O. 145 is different from the scope of the enquiry against the petitioners, and hence there may

be difference in the manner of recording of statements of the same persons in the two enquiries, but this is a matter which need be considered only

when the statements are actually used and their relevancy or reliability comes into question.

For the foregoing reasons, the order of the learned Special District Magistrate is set aside and he is directed to furnish copies of the former

statements of such of the witnesses enquired before the D. R. O. as the prosecution wants to examine ''in the enquiry against the petitioners.