Shri Tridib Sharma vs The State of Assam

K.N. Saikia, J.—This is an application under Sections 397 and 401 of the Code of Criminal Procedure, 1973 for revision of the order dated 17.11.1984 passed by Sessions Judge, Gauhati rejecting, inter alia, the prayer of culling for previous statements of all the witnesses recorded and the report submitted by an Inquiry Committee constituted by the Government of Assam.

The Petitioner, along with four others, is standing trial in Sessions Case No. 71 (K.G) of 1984, in the Court of the Sessions Judge, Kamrup on charges u/s 307 I.P.C. and Sections 25 (1B) (A) and 26(1) of the Arms (Amendment) Act, 1983 on the allegations, inter alia, that on 19.11.1983 at about 5.15 P.M. while the Chief Minister of Assam, Shri Hiteswar Saikia with his wife, after attending a function in the Rabindra Bhawan, Gauhati, was boarding his car in front of the main gate for returning to his residence, the Petitioner made an attempt on his life by aiming a loaded revolver on his forehead, that the Petitioner was possessing the revolver without any valid document; that the Petitioner was immediately overpowered and taken to custody; and that the District Magistrate, Kamrup and many other Police Officers and men witnessed the occurrence.

While aforesaid Sessions case was fixed for recording evidence of prosecution witnesses from 12.11.1984 onwards, on 17.9.1984, the Petitioner filed an application praying to call for copies of the statements of all the witnesses recorded at the enquiry and the report submitted by the Enquiry Committee constituted by the Government of Assam which were stated to be available with the Chief Secretary and/or Home Secretary to the Government of Assam, Dispur.

Before the trial Court the Petitioner urged, inter alia, that the aforesaid statements of the witnesses and the inquiry report would be necessary for the purpose of contradicting the common witnesses in course of cross examination u/s 145 of the Evidence Act. The learned Sessions Judge initiated a preliminary enquiry in the matter of calling for the statements and the report in course of which the prosecution objected to the prayer and the Government of Assam; filing an affidavit, claimed privilege in respect of all those statements and the report under Sections 123 and 124 read with Section 162 of the Indian Evidence Act stating that it was a confidential inquiry to find out lapses of the security force which led to the untoward incident and it had no connection with the actual crime alleged to have been committed by the accused person, and that their publication would be detrimental to the public interest. Though the Petitioner urged that those would be necessary for his defence and that the public interest in proper administration of justice would out weigh the public interest in maintaining the secrecy in the matter of the statement and the report, the learned Sessions Judge rejected the prayer holding, inter alia, that the purpose of the Enquiry Committee was for security lapses and not for the purpose of the crime committed; that those statements before the Enquiry Committee would not in any way prejudice the accused persons standing trial in the case as they have already been furnished with the statements of witnesses recorded by police u/s 161 Code of Criminal Procedure; and that those documents were related to the affairs of the State and u/s 162 of the Evidence Act, the Government had every right to claim privilege for not sending them to the Court. Hence this petition.

It is pertinent to note that the Petitioner had not stated before the Sessions Judge as also before this Court as to who are the common witnesses whose statements were recorded by the Enquiry Committee and were to be examined in the Sessions Case, Except mentioning the name of Shri S.K. Agnihotri the name of no other witnesses has bee a mentioned in the petition. Mr. Bhattacharyya submits that besides Shri Agnihotri at least the Chief Minister of Assam and his wife are likely to be other common witnesses. We are, however, of the view that witnesses cm not be regarded as common witnesses unless their statements bad already been recorded earlier by the Enquiry Committee and they have also been examined in that Sessions Case. In this case even when a witness is examined in chief, there may or may not be such evidence as would necessitate his prompt contradiction u/s 145 of the Evidence Act by the accused Petitioner. Even if there may occur some such evidence the nature and the extent of the evidence may vary from witness to witness. It may also be probable that no such contradiction would be necessary. Without being furnished with the above details would it not be some son of roving or fishing attempt to have the inquiry report and the entire statements of all the witnesses irrespective of whether they have been examined or not in the Sessions Case? What purpose would be served by the report of the enquiry for the purpose of the Petitioner''s cross-examination? While deciding the questions we have to bear these facts in mind.

The application has been referred to this Full Bench by the Division Bench order dated 23.1.85 for decision on the points formulated by it, and to examine whether, in view of the decisions in The State of U.P. Vs. Raj Narain and Others, (The S.P. Gupta Vs. President of India and Others, S.P. Gupta v. President of India), the Division Bench decision in S.B. Choudhury and Another Vs. I.P. Changkakati and Another, Choudhury v. I.P. Changkakati) requires any fresh look. The points formulated by the Division Bench are: (1) Is the impugned order an interlocutory order so that revision thereof is barred under Sub-section (2) of Section 397 Code of Criminal Procedure? (2) What is the nature and extent of the Petitioner''s right, if any, at this stage to be furnished with the statements and the report of the Enquiry Committee for the purpose of enabling him to contradict the common witness in course of their cross-examination and is the effect of non-supply of all those statements and report? (3) Whether the learned Sessions Judge was correct in upholding the claim of privilege on the grounds claimed even without inspecting the statements and the report as stated in the order?

Mr. A.K. Bhattacharyya, the learned Counsel for Petitioner, submit, inter alia, (1) that the subject matters of the the trial in the above mentioned Sessions case and of the enquiry before the Inquiry Committee being substantially the same, a ad as roost of the persons examined by the Inquiry Committee would also appear as witnesses in this Sessions case the Petitioner has a right to cross-examine these witnesses, with reference to their earlier statements made before the Inquiry Committee as per provision of Section 145 of the Evidence Act and the impugned order of the Sessions Judge having deprived the Petitioner of this right, his defence has been gravely prejudiced and he is denied a fair trial which is violative of Article 21 read with Article 39A of the Constitution of India and (2) that it was obligatory on the part of the Sessions Judge to embark upon an examination of the report and the statements in question for the purposes of its perusal and examination and without such production and inspection the Court could not have formed the requisite opinion as to whether those documents were privileged as their disclosure would be against the public interest; and the Sessions Judge having allowed the claim of privilege without forming such opinion, his order is liable to be set aside. It may be stated that though in the petition it was prayed that the Petitioner may be allowed to make full use of the General Diary entries, no argument has been advanced by the Petitioner as regards the General Diary entries and Mr. Bhattacharyy''s state that he has abandoned his prayer for calling for the Report of the Enquiry Committee and has confined his prayer only to the relevant portions of the statements of the common witnesses relating to the circumstances leading to the incident which was one of the terms of reference before the Inquiry Committee. We will, therefore, confine out consideration only to those portions of the statements of the common witnesses. According to counsel, S. B. Choudhury (supra) needs a fresh look in view of the subsiquent decisions decisions in Raj Narain and S.P. Gupta''s cases (supra).

Mr. K.T.S. Tulsi, the learned Special Public Prosecutor, Assam demurs submitting, inter alia, (1) that the impugned order being merely a step in the proceeding is a purely interlocutory one and it has not ended in final decision of the criminal case and as such Section 397(2) Code of Criminal Procedure is a complete bar to its revision (2) that there is neither any lack of jurisdication nor any illegality on the part of the Sessions Judge, in holding that the purpose of inquiry having been different from that of the Criminal Case, the non-supply of copies of statements of common witnesses, recorded by the Inquiry Committee, has in No. way caused prejudice to the Petitioner and for that matter in no way resulted in denial of fair trial, or any other right to him; and (3) that the Sessions Judge having correctly exercised his discretion in holding that the statements and the report of the Inquiry Committee having been related to the affairs of the State, the State rightly claimed privilege in respect thereof without even inspecting the statements and the report as it was not obligatory on his part to inspect those under the above circumstances for upholding the claim to privilege; and, as such, no revision lies against the impugned order under Sections 397 and/or 401 Code of Criminal Procedure. The submissions have been precisely stated in eight propositions. He further submits that the decision in S.B. Choudhury''s case (supra) does not require any fresh look.

We now take the points seriatim. Under sub-section (2) of Section 397 Code of Criminal Procedure the powers of revision conferred by Sub-section (l) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. The expression ''Interlocutory order'' has not town defined in the Code of Criminal Procedure. According to Webster''s New Twentieth Century Dictionary, in law ''interlocutory'' means an intermediate; not final or definitive; pronounced during the course of a suit, pending final decision; as, an interlocutory divorce decree. According to Mozley and Whiteley''s Law Dictionary, an interlocutory judgment is an action at law, given upon some defence, proceeding, or default, which is only intermediate and does not finally determine or complete the action. The phrase is most frequently applied to those judgments whereby the right of the Plaintiff to recover in the action is estabilish, it the quantum of damages sustained by him is not ascertained. Interlocutory decree or order according to the same Dictionary ''is a decree or order which does not conclude a case, eg, an order for inspection of documents''. According to Osborn''s Concise Law Dictionary-"while a final order determines the rights of the parties an interlocutory order leaves something to be done to determine those rights''. An interlocutory proceeding is ''one taken during the course of an action and incidental to the principal object of the action, namely, the judgment''. According to Black''s Law Dictionary, interlocutory'' means provisional; interim; temporary; not final. Something intervening between the commencement and the end a suit which decides some point or matter, but is not final, decision of the whole controversy. ''Intermediate order'' means ''an order made between the commencement of the action and its final determination incident to and during its progress, which does not determine the cause but only some intervening matter relating thereto.'' According to Stroud''s Judicial Dictionary (4th Ed. Vol. 3, p. 1410), an interlocutory order (Judicature Act, 1873 (C. 66) Section 25 ( 8)) is not confined to an order made between writ and final judgment, but means an order other than final judgment. According to Wherton''s Law Lexican (14th Ed. p. 529 ) ''An interlocutory order or judgment is none made or given during the progress of an action, but which docs not finally dispose of the rights of the parties''. In Halsbury''s Laws of England ( 3rd. Ed., Vol. 22, para 1608) ''Interlocutory judgment and Order'' has been defined as: ''An order which does not deal with the final rights, but either (1) is made before judgment, and gives no final decision on the matters in dispute, but is merely on a matter of procedure, or (2) is made-after judgment and merely directs how declaration of right already given in the final judgment are to be worked out, is termed ''interlocutory''. An interlocutory order, though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals''.

The Corpus Juris Secundum (Vol. 60) defines ''interlocutory order'' thus:

The word ''intelocutory'' as applied to rulings and orders by the trial Court, has been variously defined. It refers to all orders, rulings, and decisions made by the trial Court from the inception of an action to its final determination. It means not that which decides the cause, but that which only settles some intervening matters relating to the cause. An interlocutory order is an order entered pending a cause, deciding some point or matter essential to the progress of the suit and collateral to the issues framed by the pleadings and not at final decision or judgment on the matter in issue.... An intermediate order has been defined as one made between the commencement of an action and the entry of the judgment.

In Vol. 49, p. 35, ''interlocutory judgment'' has been distinguished from ''final judgment'' thus:

A final judgment is one which disposes of the cause both as to the subject matter and the parties as far as the Court has power to dispose of it. While an interlocutory judgment is one which reserves or leaves some further determination.... Generally however, a final judgment is one which disposes of the cause both as to the subject matter and the parties as far as the Court has power to dispose of it, while an interlocutory judgment is one which does not so dispose of the cause, but reserves or leaves some further question or direction for future determination...the term ''interlocutory judgment'' is, however, a convenient one to indicate the determination of steps or proceedings in a cause preliminary to final judgment, and in such sense the term is in constant and general use even in code states.

From the above definitions the general characteristics of an interlocutory order can be seen. We start from the commencement or inception of an action, on one end and the final judgment or determination of the action on the other end. In between those two ends numerous types of orders are passed, some on oral or simple prayers and some on interlocutory applications or proceedings. These orders do not finally determine the action. Some of the orders may finally determine the interlocutory applications or proceedings and are final in so far as those interlocutory applications or proceedings and the rights involved therein are concerned. But those will be interlocutory orders vis-a-vis the main action is concerned. Some intermediate orders are passed otherwise than in any such interlocutory applications or proceedings. Generally speaking, all these orders will be treated as interlocutory orders. None of these orders will finally determine the action and the disputed right. All those orders passed in between, the commencement and the final decision or determination of the action or disputed right will be generally categorised as interlocutory orders. Any order made as to the procedure in the action will be an interlocutory order. In this sense orders passed before as well as after the judgment in the action could be interlocutory orders as converse of final judgments and orders. Whether all of them will be covered by the term ''interlocutory order'' for the purpose of Section 397(2) Code of Criminal Procedure is of course a different question.

As found in Osborn, ''interlocutory proceeding'' is one, taken during the course of action and incidental to the principal object of the action, namely, the judgment. Thus, interlocutory applications in an action include all steps taken for the purpose of assisting either party in the prosecution of the case; or of protecting or otherwise dealing with the subject matter of the action, or executing the judgment when obtained''. In the words of Lord Denning-''By interlocutory applications we mean applications of a minor or interim nature-as distinct from final appeals'' which decide the rights of the parties finally''. An order passed in an interlocutory application or proceeding will be an Interlocutory order. Thus, an order may be interlocutory, inter-intermediate, interim or non-final. Analysed in the terms of determination of right, the main right disputed in the action will be determined only by the final judgment in the action. But in course of the prowling law has conferred on the parties various procedural rights in course of the proceedings. An interlocutory order may, therefore, finally determine such a tight given to a party to the action in so far as action is concerned as distinct from the main right which is disputed in the main action itself. It will not be correct to say that an interlocutory order does not finally determine any right. It may determine a right, but that is a right conferred on the party to the action to be exercised during the course of the action and not a right to be determined by the action by final judgment. In a slightly wider sense even an order passed for execution on working out the judgment finally determining the action is also called an interlocutory order. If the judgment in the suit is already pronounced, the order directing how the declaration of the rights already given in the final judgment are to be worked out, is often termed as interlocutory. In Cummins v. Herron (1877) 4 Ch. D. 787 it was held that an order made on an application to vary a certificate of the amount of damages payable by the Defendant was an interlocutory order. In Re Lewis v. Williams (1886) 31 Ch. D. 623 C.A. it was held that an order in an administration action directing taxation of costs and application of funds in Court, and giving liberty to apply as to getting the assets was an interlocutory order.

Keeping the above principles in mind Courts have been categorising interlocutory orders. In Isaacs and Son v. Salbstain (1916) 2. K.B. 139 C.A. (P. 146) it was held that an order directing a new trial was interlocutory as no such order could in its nature be an order finally determining the rights of the parties.

An interlocutory order is the converse of a final order. A final order is which terminates the litigation between the parties and the merits of the ewe and leaves nothing to be done but to enforce by execution what has been determined. A judgment is considered final only if it determines the rights of the parties and disposes of all the issues involved so that no further action by the Court would be necessary in order to settle or determine the controversy. Blackstone says: ''Final judgments are such as at once put an end to the action by declaring that the Plaintiff has either entitled himself, or has not, to recover the remedy he sues for'' (3 Bl. Com, 398). Four different tests for ascertaining the finality of a judgment or order have been suggested:- (1) was the order made upon an application such that a decision in favour of either party could determine the main dispute? (2) Was it made upon an application upon which the main dispute could have been decided? (3) Does the order as made determine the dispute? (4) If the order in question is reversed would the action have to go on? The first test was followed in Ex Parte Moore in Re Faithful (1985) 14 Q.B.D. 627 by Lord Selborne observing: "To constitute an order a final judgment nothing more is necessary than that there should be a proper litis cantestatio, and a final adjudication between the parties to it on the merits". The same test was followed in Salaman v. Warner (1881) 1 Q.B. 734 C.A. wherein Lord Esher M.R. held that a final order was one made on such an application or proceeding that, for whichever side the decision might be given, it would, if it stood, finally determine the matter in litigation. Alverstone C.J. in Bezson v. Altrichan Urban District Council (1903) 1 K.B. 547 also observed: "It seems to me that the real test for determining this question ought to be this: Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an interlocutory order".

In AIR 1949 1 (Federal Court) the Federal Court considered the meaning of the expression final order'' given by English and Indian Courts and referred, with approval to the decisions in Salaman v. Warner (supra); Bazon v. The Altrincham Urban District Council No. (1), (1903) 1 K.B. 547; Ramchand Manjlmal v. Goverdhandas Vishandas Ratanchand AIR 1920 P.C. 86 ; AIR 1933 58 (Privy Council) Hori Ram Singh v. The Crown (1939) D.C. 43; and AIR 1943 24 (Federal Court) It was held that those decisions were in civil case and it was observed: "We think that the same meaning should be given to that expression in criminal cases also, that is to say, it must be an order which finally determines the points in dispute and brings the case to an end". In their Lordships'' opinion the term ''judgment'' indicates a judicial decision given on the merits of the dispute brought before the Court and that in a criminal case, the expressions ''judgment or final order'' cannot cover a preliminary or interlocutory order. Interpreting the term ''final order'' for the purpose of Section 205(1) of the Government of India Act, 1935 their Lordships held that in a criminal case, expressions "judgment or final order'''' cannot cover a preliminary or interlocutory order made do on a preliminary objection, such as want of sanction u/s 157 Code of Criminal Procedure and that a ''final order'' must be an order which finally determines the points in dispute and brings the case to an end. In the words of Sir George Lownden "to constitute a final order it is not sufficient merely to decide an important or even a vital issue in the case, but the decision must not keep the matter alive and provide for its trial in the ordinary way". In Seth Premchand Satramdas Vs. The State of Bihar, an order of the High Court declining to call upon Board of Revenue to state a case u/s 21 of the Bihar Sales Tax Act 1944, was held not to .be a final order passed in exercise of either original or appellate jurisdiction.

On the question whether the impugned order is an interlocutory one within the meaning of Section 397 (2) Code of Criminal Procedure the learned Special Public Prosecutor submits that by the impugned order the, learned Sessions Judge has merely refused to exercise his discretion u/s 91 Code of Criminal Procedure by holding that for the reasons recorded therein it was neither necessary or desirable for the purpose of the trial to direct the production of the documents sought to be summoned by the accused u/s 162 Code of Criminal Procedure and as such the said order is merely a step in the proceedings of trial and is clearly a procedural matter and it neither decides nor purports to decide any such right of the accused, which, if upheld, would have put an end to the proceedings. Counsel relies on AIR 1963 SC 1897 : Assistant Collector of Customs and Another Vs. L.R. Malwani and Another, Asstt. Collector of Customs v. L.R. Melwani (1971) 2 Q.B. 5P7 ; Amar Nath and Others Vs. State of Haryana and Another, Amar Nath v. State of Haryana AIR 1918 SC 47 : V.C. Shukla Vs. State through C.B.I., V.C. Shukla v. State.

In Col Sujan Singh''s case (supra), the Respondents were prosecuted for an offence u/s 6 (1)(a) of Prevention of Corruption Act, 1947 (Act 2 of 1947) after obtaining sanction of the Central Government u/s 197 Code of Criminal Procedure. The Respondents objected that the sanctioning authority did not apply his mind properly when sanction for the prosecution was granted and Col. Sujun Singh filed a petition before the Special Judge to summon the concerned records of the Home Department on the ground that the said words would substantiate his assertion that the concerned officer did not apply his mind earlier in according sanction for his prosecution. The Secretary, Ministry of Home Affairs, claimed privilege on the ground that the production of the record containing the said nothings of the Deputy Secretary would not be in the interests of the State. The Special Judge in the first instance and the High Court in revision rejected the claim of privilege raised by the Union Government. On appeal by the State of U.P., their Lordships referred to Seth Premchand Satramdas Vs. The State of Bihar, : Seth Premchand Satramdas Vs. The State of Bihar, where the Court speaking through Fazal Ali, J. defined the expression ''final order'' thus:

It seems to us that the order appealed against in this case, cannot be regarded as a final order, because it docs not of its own force bind or affect the rights, of the parties.

Though that definition was given in a different context, it washed that the same would equally apply to Article 134 of the Constitution. Their Lordships then observed:

Can it be said that the Special Judge in allowing the petition of the Respondents to calk for the production of a document from the Union Government is a final order in the criminal proceedings? The criminal proceeding were taken against the Respondents for an offence u/s 6(1)(a) of the Prevention of Corruption Act, 1947. The proceedings are now pending in the Court of the Special Judge. In the course of these proceedings the Respondents filed an application for the production of a document by the Union Government and that was allowed by the Court. The said order is only an interlocutory order pending the proceedings. It does not purport to decide the right of the parties, namely, the State of U.P. and the accused. It enables the accused to have the said document duly proved and exhibited in the case. It relates only to a procedural step for adducing evidence. The High Court confirmed that order in revision. But the learned Counsel contends that it negatives the claim of privilege made by the Union Government and, therefore, it decides against the right of the Union Government to withold the production of the document. Assuming that the order decides some right of the Union Government, on which we do not express any opinion the Union Government is neither a party to the criminal proceedings nor is it a party either before the High Court or before us. The indirect effect of that order on a third party to the proceedings, who does not seek to question that order of its interlocutory character. We therefore, bold that the order made by the High Court is not a final order within the meaning of Article l94(l) of the Constitution.

In Mohan Lal Magan Lal Thacker Vs. State of Gujarat, after an enquiry u/s 476 Code of Criminal Procedure, the Magistrate ordered filing of a complaint against the Appellant in respect of offences under Sections 205, 467 and 468 read with Section 114 of the Penal Code. In appeal filed by the Appellant, the additional Sessions Judge held that the said complaint was justified but only in respect of the offence u/s 205 read with Section 114. In revision by the Appellant, the High Court dismissed the application saying that the High Court, as a matter of law would never exercise its revisional jurisdiction in such cases. The High Court gave certificate under Article 134 (l)(c) of the Constitution. In the Supreme Court, a preliminary contention was raised oh behalf of the Respondent that the High Court''s order dismissing the revision was not a final order. It was held per majority Wanchco, C.J., Shelat and Vaidialingam, JJ. that the order passed by the High Court in revision was a ''final order'' within the meaning of Article 134 (1)(c) of the Constitution. The controversy between the parties as to whether the Complaint in respect of offences under Sections 467 and 468 read with Section 114 Penal Code, was justified or not was disposed of by the order of dismissal and the proceeding regarding that question was finally decided, and the finality of that order was not to be judged by co-relating that order with the controversy in the complaint, viz., whether the Appellant had committed the offences charged against him therein, and that that the fact that controversy still remained alive was irrelevant. Their Lordships further observed:

The question as to whether a judgment or an order is final or not has been the subject matter of a number of decisions; yet no single general test for finality has no far been laid down. The reason probably is that a judgment or order may be final for one purpose and interlocutory for another or final as to part and interlocutory as to part. The meaning of the two words ''final'' and ''interlocutory'' has, therefore, to be considered separately in relation to the particular purpose for which it is required. However, generally speaking, a judgment or order which determines the principal matter in question is termed final. It may be final although it directs enquiries or is made on an interlocutory application or reserves liberty to apply. In same of the English decisions where this question arose one or the other of the following four tests was applied.

Was the order made upon an application such that a decision in favour of either party would determine the main dispute?

Was it made upon an application upon which the main dispute could have been decided?

Does the order as made determine the dispute?

If the order in question is reversed, would the action have to go on?

In Melwani''s case (Supra) the question was whether the statements recorded by customs authorities mentioned in the petition filed by the first accused were required to be summoned u/s 94 Code of Criminal Procedure. The Magistrate having dismissed the petition the High Court in revision did not agree with the Magistrate that there was no need, at that stage to summon the statements of witnesses recorded by the customs authorities under the Customs Act and directed the Magistrate to summon those statements and further directed him to see that the prosecution made available the copies of those statements to the accused before the commencement of the enquiry in the case. In appeal the Supreme Court observed that the High Court was not justified in interfering with the discretion of the learned Magistrate. Whether a particular document should be summoned or not in essentially in the discretion of the trial Court. The learned Magistrate observed in his order:

The recording of the prosecution evidence is yet to commence in this case and at present there are no materials before me to decide whether or not the production of any of the statements and documents named by the accused in his application is desirable or necessary for the purpose of the enquiry or trial. As stated at the outset, the learned Special prosecutor has given an undertaking that he would produce all the relevant statements and documents at the proper time in the course of the hearing of the case. The request made for issue of the summons u/s 94, Code of Criminal Procedure is also omnibus.

The Supreme Court observed:

The reasons given by the learned Magistrate in support of his order are good reasons. The High Court has not come to the conclusion that the documents in question, if not produced in Court are likely to be destroyed or tampered with or the same are not likely to be made available when required. It has proceeded on the erroneous basis that the accused will not have a fair trial unless they are supplied with the copies of those statements even before the enquiry commences. Except for very good reasons, the High Court should not interfere with the discretion conferred on the Trial Courts in the matter of summoning documents. Such interferences would unnecessarily impede the progress of cases and result in waste of public money and time as has happened in this case.

In Rex and Co. (Supra) it was observed:

I look to the application for a new trial and not to the order made. If the application for a new trial was granted it would clearly be interlocutory, so equally, when it is refused it is interlocutory.

Sub-section (2) of Section 397 Code of Criminal Procedure is a newly added restriction to the scope of revision under this section. It is accepted that revision in respect of interlocutory orders has been barred for preventing delay in disposal of cases and the legislature expected that this restriction will not result in injustice. An interlocutory order has not been defined in the Code. It was held in Mohanlal that the meaning of the words ''final'' and ''interlocutory'' has to be considered separately in relation to the purpose for which it was required. As was held in Kuppuswami, the test to determine whether an order is interlocutory or final in a criminal proceeding is the same as in civil proceedings. The expression ''interlocutory order'' has since been interpreted by the Supreme Court in three decisions, namely, Amarnath, Madhu Limaye and V.C. Shukla. In Amar Nath out of 11 persons mentioned in the F.I.R. the police submitted charge-sheet against the others but final report against the Appellants and the Magistrate accepted the same. The revision therefrom moved by the complainant was also dismissed. Thereafter the informant filed a complaint case before the Judicial Magistrate against the (sic) accused persons including the Appellant, which was dismissed. The Sessions Judge, however, accepted the revision petition against that order and remanded the case where after Magistrate ordered issue of summons to the Appellant, straightway. The Appellants, then moved the High Court u/s 482 and 397 for quashing the order mainly on the ground that the Magistrate had issued the summons in a mechanical manner without applying his Judicial mind to the facts of the case. The Court dismissed the petition in limine and refused to entertain it on the ground that as the order or the judicial Magistrate summoning the Appellant was as interlocutory order, a revision to the High Court was barred under subjection (2) of Section 397 of the Code and the case could not also be taken u/s 482 Code of Criminal Procedure.

Allowing the appeal from the High Court''s order, as-regards the meaning of the term "interlocutory order'''' as appearing in Sub-section (2) of Section 397 Code of Criminal Procedure their Lordships observed:

Decided cases have laid down that interlocutory orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect. It seems to us that the term ''interlocutory order'' in Section 397 (2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially tantially affects rights of the accused, or decided certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of the particular provisions in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may on doubt amount to interlocutory orders against which no revision would be u/s 397 (2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court.

After referring to decisions in Mohan Lal Magan Lal Thacker Vs. State of Gujarat, and also considering the facts that against the Appellant earlier police submitted final report which was accepted by the Magistrate and revision against the order also failed and a complaint by Respondent No. 2 before the Judicial Magistrate also dismissed on merits, the Sessions Judge in revision of that order setting aside the order dismissing the complaint and ordering further enquiry and the Magistrate on receipt of that order of the Sessions Judge summoned the Appellant straightway which meant that, the Appellants were to be put on trial, their Lordships held that at could not be said that the Appellants were not prejudiced by the impugned order and their Lordships were satisfied that, the order impugned was one which was a matter of moment and which did not involve a decision regarding the right of the Appellants. If the Appellants were not summoned, then they could not have faced the trial at all, but by compelling the Appellants to face a trial without proper application of mind cannot be held to be an interlocutory matter but one which decided a serious question as to the rights of the Appellants to be put on trial. Thus orders which are matters of moment though otherwise interlocutory will not he interlocutory for the purpose of subjection (2) of Section 397 Code of Criminal Procedure. Affirming this principle in Madhu Limaye, considering the scope of Section 397 (2) Code of Criminal Procedure and the meaning of the term ''interlocutory order'' reference was made to what Lord Esher M.R. said in Saleman v. Arner (1891) 1 QB 734: "If their decision, whichever way it is given, will, if it stands, finally disposed of the matter in dispute, I think, that for the purpose of these rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, but, if given in the order, will allow the action to go on, then I think it is not final, but interlocutory". Their Lordships of the Supreme Court, however, held;

(sic) if this strict test were to be applied in interpreting the words ''interlocutory order'' occurring in Section 397 (2), then the order taking cognizance of an offence by a Court, whether it is so done illegally or without jurisdiction, will not be a final order and hence will be an interlocutory one.... But in our judgment such an interpretation and the universal application of the principle that what is not a final order roust be an interlocutory order it neither warranted nor justified, If it were so it will render almost nugatory the revisional power of the Sessions Court or the High Court conferred on it by Section 397(1), On such a strict interpretation, only those orders would be revisable which are orders passed on the final determination of the action but ate not appealable under Chap. XXIX of the Code. This does not seem to be the intention of the Legislature when it retained the revisional power of the High Court in terms identical to the one of the 1898 Code. In what cases then the High Court will examine the legality or propriety of an order or the legality of any proceeding of an inferior Criminal Court? Is it circumscribed to examine only such proceeding which is brought for its examination after the final determination and wherein no appeal lies? Such cases will be very few and far between.

Referring to the principle of interpretation stated in The River Water Commissioners v. William Aaamson (1876) 2 AC 743 and R.M.D. Chamarbaugwalla Vs. The Union of India (UOI), that although the words occurring in a particular statute are plain and unambiguous, they have to be interpreted in a manner which would fit in the context of the other provisions of the statute and bring about the real intention of the legislature, and pointed out that on the one hand, the legislature keep intact the revisional power of the High Court and, on the other, it put a bar on the exercise of that power in relation to any interlocutory order. It was therefore held;

In such a situation it appears to us that the real intention of the legislature was not to equate the expression ''interlocutory order'' as invariably being converse of the words ''final order''. There may be an order passed during the course of a proceeding which may not be final in the sense noticed in AIR 1949 1 (Federal Court) but, yet it may not be an interlocutory order-pure and simple. Some kinds of order may fall in between the two. By a rule of harmonious construction, we think that the bar in Sub-section (2) of Section 397 is not meant to be attracted to such kinds of intermediate orders. They may not be final orders for the purposes of Article 134 of the Constitution, yet it would net be correct to characterise them as merely interlocutory orders within the meaning of Section 397 (2). It is neither advisable, nor possible, to make a catalogue of orders to demonstrate which kinds of orders would be merely, purely or simply interlocutory and which kinds of orders would be final, and then to prepare an exhaustive list of those types of orders which will fall in between the two. The first two kinds are well known and can be culled out from many decided cases.

The Court in that case was concerned with an order rejecting the application challenging jurisdiction of Court to proceed with the trial; and their Lordships held:

Even though it may not be final in one sense, is surely not interlocutory so as to attract the bar of Sub-section (2) of Section 397. In our opinion it must be taken to be an order of the type falling in the middle course.

In V.C. Shukla (supra) the Supreme Court distinguished between the meanings of ''interlocutory order'' in Section 397(2) Code of Criminal Procedure and in Section 11(1) of the Special Courts Act, 1979 and held as per majority of four Hon''bls Judges to one that the words "interlocutory order" used in Section 397(2) of the Code "relates to various stages of the trial, namely, appeal, inquiry, trial or any other proceeding. The object seems to be to out down the delays to stages through which a criminal case passes before it culminates in an acquittal, discharge or conviction". "Having regard to the vary large ambit and range of the Code, the expression ''interlocutory order'' would nave to be given a broad meaning so as to achieve the object of the Act without disturbing or interfering with the fairness of the trial. The terra ''interlocutory order'' used in the Code of Criminal Procedure has to be given a very liberal construction in favour of the accused in order to ensure, complete fairness of the trial because the bar contained in Section 397(3) of the Code would apply to a variety of eases coming up before the Courts not only being offences, under the Penal Code but under numerous Acts. The revisional power of the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi final. Their Lordships reiterated that:

...the term ''interlocutory order'' used in the Code of Criminal Procedure has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial because the bar contained in Section 397(3) of the Code would apply to a variety of cases coming up before the Courts not only being offences under the Penal Code but under numerous Acts. If, therefore, the right of revision was to be barred, the provision containing the bar must be confined within the four corners of the spirit and the letter of the law. In other words, the revisional power of the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi final.

Their Lordships summed up the law as follows:

...the essential attribute of an interlocutory order is that it merely decides some point or matter essential to the progress of the suit or collateral to the issues sought but not a fina1 decision or judgment on the matter in issue. An intermediate order is one which is made between the commencement of an action and the entry of the judgment, Untwalia J. In the case of Madhu Limaye v. State of Maharashtra clearly meant to convey that an order framing charge is not an interlocutory older but is an intermediate order as defined in the passage, extracted above, in Corpus Juris Secundum, Vol.60. We find ourselves in complete agreement with the observations made in Corpus Juris Secundum.

The decision in Manohar Nath Sher Vs. State of J. and K., is covered by the above decisions in this regard.

Applying the law as enunciated above, all interlocutory orders, as generally understood, shall not be excluded Under Sub-section (2) of Section 397 Code of Criminal Procedure for the purpose of revision u/s 397 (1). Orders which are interlocutory and not final in the general sense but fall in the middle course being an intermediate or quasi final order and are matters of moment and which affect or adjudicate the rights of the aroused or a particular aspect of the trial and which result in denial of fair trial to the accused, will not be interlocutory orders within the purview of Sub-section (2) of Section 397 Code of Criminal Procedure. The instant impugned order is one of rejection of the application to call for the report submitted and the statements of witnesses recorded by the Enquiry Committee upholding the privilege as claimed by the State. It cannot be said to be final order in so far as the main controversy as to the guilt of the Petitioner is concerned. The case is to continue until final decision. The right involved is the Petitioner''s right of cross-examining the prosecution witnesses. The instant impugned order by no means denies that right. Admittedly, the Petitioner has been furnished with the papers u/s 173 Code of Criminal Procedure including the statements recorded by the police u/s 171 Code of Criminal Procedure. The statements sought to be called for would not go into evidence straightway but only after the common witnesses are confronted therewith in cross-examination. It could not, therefore, be said to be denial of evidenciary materials as such. If those statements, on examination, turned out to be such that there will be no material for confrontation of common witnesses denial of those statements would have no affect on the trial whatsoever and the question of denying fair trial to the accused would not arise at all. If the statements turned out to be such that confrontation of the common witnesses therewith would be material for the purpose of the Petitioner''s defence and for that matter if proper adjudication of the case, it may result in denial of fair trial to the accused Petitioner and in that case the impugned order would not be an interlocutory order but would be an Intermediate order of moment affecting or adjudicating the rights of the accused or the particular aspect of the trial by upholding the claim of privilege.

This takes us to the question of the precise nature of the Petitioner''s right to obtain the statements. Mr. Bhattacharyya asserting the rights of the Petitioner to have those statements refers us to Section 91 Code of Criminal Procedure and Sections 145 and 165 of the Indian Evidence Act as well as Articles 31 and 39A of the Constitution of India. Counsel relies on 1935 Cri. L.J. 581, 1955 Cri.L.J. 509 , In Re: Dr. Raghotham, , Major Som Nath Vs. Union of India (UOI) and Another, ; Ram Chander Vs. State of Haryana, He also relies on the observation of Lord Simon of Glaisda''e in D. v. National Society for the prevention of Cruelty to Children (1977) 2 W.L.R. 201 that ; the public interest that no innocent men should be convicted of crime is so powerful that it outweighs the general public interest'' which might be injured by the disclosure of the document, Mr. Tulsi answers submitting that the impugned order of the Sessions Judge has not denied any right of the Petitioner for the reasons inter alia that the inquiry into the security lapses, etc. was not an open enquiry under the Commission of Enquiries Act, but a confidential administrative enquiry under an executive order ; that prosecution itself places no reliance on the enquiry report or proceedings before the enquiry committee in the criminal trial; that the copies of the statements recorded by the police u/s 161 Code of Criminal Procedure on which prosecution proposed to rely in course of the trial have already been supplied to the accused; that the statements of the witnesses arc sought to be culled not for the purpose of establishing substantive defence to the charges made against the accused but only for the purpose of contradicting the prosecution witnesses: that the proceedings of the administrative enquiry and the report thereof came into existence in the instant case on the peculiar facts and circumstances of the case and that in no other criminal trial is such material either available or made use of by the accused for the purpose of contradicting the witnesses. Thus even if the accused does not have access to the proceedings of the confidential enquiry he would be at no disadvantage compared to all the other accused who are required by law to face a criminal trial according to the Code of Criminal Procedure which is self contained and adequate. Mr. Tulsi, however, has not submitted that the Petitioner has no right at all. His contention is that the privilege was rightly claimed and it was rightly allowed by the lower Court, and did not amount to denial of any right to fair trial.

The learned Public Prosecutor answered this question along with that of privilege and the two questions may, therefore, be taken up together. We may, however, examine at which stage of the proceeding such a right may be exercised. Sub-section (1) of Section 91 provides that whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it at the time and place stated in the summons or order. Under Sub-section (3) thereof nothing in that section shall be deemed to affect Sections 123 and 124 of the Indian Evidence Act. These two sections deal with privilege. Section 242 of the Code comes into play after the prosecution evidence is closed. Under Sub-section (1) of the Section the accused shall then be called upon to enter upon his defence and produce his evidence, and under Sub-section (2) thereof if the accused after he has entered upon his defence, applies to the Magistrate to issue any process to compel the attendance of any witnesses for the purpose od examination or cross-examination, or the production of tiny document or other thing, the Magistrate shall issue such process unless he considers such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing. u/s 247 the accused shall then be called upon to enter upon his defence and produce his evidence and the provisions of Section 243 shall apply to the case. It is clear from the word ''whenever'' in Section 91 that the Section empowers the Court to exercise its power at the instance of the accused even before he enters on his defence. In other words, the power may be exercised at any sage at the request of any party including the accused whose right to apply u/s 247 of the Code comes into play only at a particular stage of the trial. Sections 91 and 247 ore Inter-dependant. In a case in which Section 243 applies the accused can u/s 91 apply for production of documents to enable him to cross-examine witnesses before entering upon his defence, or before the framing of charge, If an accused desires to call for some documents it must not bi refused merely on the ground that if necessary they may be summoned at the defence stage. However, the jurisdiction to order production of a document comes into play after the Court being satisfied decides that it is "necessary or desirable" that it should be produced, as being relevant or having some connection with the subject matter of enquiry. The satisfaction of the Court should appear on the face of the order which would also contain reason for it. Non-compliance with the provision makes the order bad as was held in 1971 Cri.L.J. 1929. The Court is to consider whether there is a prima facie case for supposing that the document is relevant. The document called for may turn out to be irrelevant but so long as it is considered necessary, or desirable the power to call for it exists. The document again may be relevant for different purposes. It may form the subject matter of an offence, or it may be required as evidence, or the accused may be entitled to a copy thereof under the provisions of the Code or it may be necessary for the purpose of Section 145 of the Evidence Act. The previous statement of witnesses for the purpose of Section 145 Evidence Act may be sent for u/s 91 if required by the accused. However, the calling of a document will not give a right of inspection to the accused unless it is ordered by the Court. The Court, therefore, has the discretion to summon or not to summon a document to be produced but the discretion has to be judicially exercised. So is the question of an order to grant inspection, unless the accused is otherwise entitled to a copy thereof, under the provisions of the Code. As was held in Melvani (supra) whether a particular document should be summoned or not u/s 94 (now Section 91) of the Code is essentially within the discretion of the trial Court, Except for very good reason, the High Court should net interfere with the discretion conferred on the trial Court in the matter of summoning documents. Though the Petitioner in the instant case could apply for summoning documents even before he entered upon his defence, whether at that stage the Court could properly decide whether the document to be called for would be relevant or not would however be a different question. When a document is sought to be called for the purpose of its use in cross-examination as to previous statements in writing u/s 145 of the Evidence Act it would be difficult to consider about his necessity or desirability unless the witness whose previous statements were to be called for was examined in the case. Even after the witness was examined the necessity of cross-examination would have to be decided on the basis of the statements given by the witness in Court. u/s 145 of the Evidence Act a witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relevant to matter in question when such writing being shown to him or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which, are to be used for the purpose of contradicting him. In the instant case no prosecution witness who made previous statement in the enquiry has yet been examined. The question of need for his contradiction u/s 145 of the Evidence Act has not yet arisen and to that extent the relevancy of such previous statement for that purpose could not have been decided except of course on the supposition that the witness would be examined in Court.

We now take the two questions, namely, the right to call for the documents and to that of privilege, together. On the question of privilege Mr. Bhattacharyya relies on several English decisions, namely, Conway v. Rimmer 1968 AC 913 : (1968) 1 All. E.R. 874: Rogus v. Secretary of State for the Home Department (1972) 2 All. E.R. 1059 ; D v. National Society for Prevention of Cruelty to Children (1977 ) 1 All E.R. 589 ; Riddick v. Thames Board Mills Ltd.( 1977 ) 3 All E.R. 677 ; Burmah Oil Co. Ltd. v. Bank of England (1979 ) 3 All E.R. 700 ; and also on three decisions of the Supreme Court, namely, The State of Punjab Vs. Sodhi Sukhdev Singh, ; The State of U.P. Vs. Raj Narain and Others, ; S.P. Gupta v. President of India AIR 1992 SC 149, Mr. Tulsi, besides relying on the same decisions also relies on Manohar Nath Sher v. State of J. and K. 1930 Cri.L.J. 292 (FB) A.K. Neogi v. Union of India AIR 1970 Gau (sic) Mahabirji Birajman Mandir Vs. Prem Narain Shukla and Others, : North Eastern Railway and Another Vs. Ram Lal Golcha, and S.B. Choudhury and Another Vs. I.P. Changkakati and Another, In S.B. Choudhury (supra) a Division Bench of this Court held that when a document is directed to be produced and the held of the department claims privilege u/s 123 of the Evidence Act, the Court will have to decide the validity of the objection raised by the head of the department. In deciding whether the document can or cannot be directed to be produced or whether the privilege claimed by the head of the department is justified, the Court may have to inevstigate into the matter. But the jurisdiction of the Court at that stage is limited to the determination of the question whether the documents refer to matter of State. It is the Court which has got to determine whether the document refers to the affairs of the State. The Court has no power to inspect the document if it refers to matters of State. The proper procedure therefore will be for the Court to determine, from other circumstance without looking into the document and before directing the production of the document, if it relates to matters of State or not. If it comes to the conclusion that it relates to matters of State from the very nature of the document or other surrounding circumstances, it will neither inspect the record nor can it go into the question as to whether the head of the department has rightly or wrongly withheld permission for its production. No evidence will be permissible with regard to the contents of such document and the certificate of the head of the department to the effect that he is withholding the permission after consideration of the document will be conclusive.

The question of privilege has two aspects, namely, the claim of privilege and the Court''s power when that privilege is claimed. It was observed in S.P. Gupta (supra):

We do not have in India any common law protection under the label of ''Crown Privilege'' as it was known a decade ago and now called public interest immunity as there is in England and the only provision of law under which immunity can be claimed in Section 123 of the Indian Evidence Act and therefore, it is this provision which we must now turn to consider.

Sections 124 and 162 of the Indian Evidence Act would also be relevant while discussing the question of privilege.

u/s 123 of the Indian Evidence Act, 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 be thinks fit. u/s 124 of the Act no public officer shall be compelled to disclose communications made to him in official confidence, when be considers that the public interests would suffer by the disclosure. u/s 162 of the same Act, a witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided only by the Court. The Court, if it deems fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility.

It is common knowledge that the Indian Evidence Act contains certain abstract rules mostly from the English law of Evidence in the form of express propositions. Best on Evidence discussed the law regarding privilege under the Chapter on evidence rejected on grounds of public policy including there-under all evidence which may be rejected by virtue of any exclusionary rule, seeing that it is to public policy that all such rules owe their existence. This is the principle by which evidence, receivable so far as relevancy to the metters in dispute is concerned, is rejected on the ground that from its reception some collateral evil would ensue to third party or the society. He divides the matters thus excluded into political, judicial, professional and social. Under political comes all secrets of State such as State papers and all communications between the Government and its officers the privilege in such cases not being that of the person who is in possession of the secret, but that of the public, as a trustee for whom the secret ,bas been entrusted to him.

Taylor on Evidence at paras 947 writes:

On grounds of public policy, too, official transactions between the heads of the departments of Government and their subordinate officers, are, in general, treated as secrets of State.... But the Court of Appeal have recently held that a communication which it can see is to be one to a Government Department is also protected from production as being a State secret if a Minister, or the Head of the Department, sees fit to claim such protection for it, and this even though be gives reasons for the claim which are founded on grounds of convenience rather than of State policy. According to the Court of Appeal, the minister to whose department a document belongs or the head of a department in whose custody it is, is the exclusive judge as to whether such document is or is not protected from production on grounds of State policy and if he claims such protection the Court will not go behind the claim, or inquire whether the document be or be not on which can properly be the subject of such a claim. Notwithstanding these decisions it may, however, be that if a minister or head of department, instead of attending at the trial personally, sent the required papers, by the bands of subordinate officer the judge would examine them himself and compel their production, unless he were satisfied that they ought, on public grounds, to be withheld.

The Indian Evidence Act was stated to have been compiled from the two volumes of Taylor on Evidence.

In Halsbury''s Laws of England, 4th Ed. Vol. 13, paragraphs 86 to 91 the English law as to Public interest and Crown Privilege has been summarised. In para 86 we read:

It is a general rule of law founded on public policy and recognised by Parliament that any document may be withheld or an answer to any question may be refused on the ground that the disclosure of the document or the answering of the question would be injurious to the public interest. The rule is a rule of substantive law and may be described as a principle of Constitutional law; it is not a mere matter of practice or procedure. Accordingly, the liability of the Crown in Civil proceedings to give discovery of documents and produce them for inspection is without prejudice to the rule of law which authorises or requires the withholding of any document on the ground that its disclosure would be injurious to the public interest. This right to withhold the disclosure and production of documents is commonly called "Crown Privilege", though perhaps erroneously since there is no question of any privilege in the ordinary sense of the word. The fundamental problem is one of balancing or reconciling the (sic) kinds of public interest which may clash; on the one hand, there is the public interest that harm should not be done to the nation or the public service by the disclosure of certain documents, and on the other hand, there is the public interest that the administration of justice should not be frustrated by the withholding of documents which must be produced if justice is to be done.

In England the litigant has a right and duty to protect public interest. "Although the privilege can only be claimed by the authority of the Crown, it is always open to any person to raise the objection that the production of documents will be injurious to the public interest. In litigation between private individuals it is the duty of the parties to draw the attention of the Crown to the possibility that the disclosure of production of document would or might be injurious to the public interest" failing the parties, "the judge himself can and should take the objection, for the rule that the public interest must not be put in jeopardy by the production of documents which would injure it in one upon which the Court should, if necessary, insist, even though no objection hits been taken by any government department."

In paragraph 90 the powers of the Court, when privilege is claimed, has been summarised thus:

The decision whether to allow or reject the claim to Crown Privilege, and if so to what extent, is and remains the decision of the Court, and the view of the political minister that the production or disclosure of documents or information, whether because of their actual contents or because of the class of documents to which they belong, is not conclusive. The Court will give full weight to the view of the minister in every case, but it has and is entitled to exercise a residual power, and indeed a duty, to examine the objection and the grounds raised by the minister to support his view that production would be injurious to the public interest. If, inspite of the certificate or affidavit of the minister, the Court is satisfied that the objection is not taken bonafide or that the grounds relied on by the minister are insufficient or misconceived or not clearly expressed or that there are no reasonable grounds apprehending danger to the public interest, the Court has a residual power to override the objection. For this purpose, the Court is entitled to see the documents before ordering production, and the Court can see the documents without their being shown to the parties, but the minister should have a right to appeal before the documents are in fact produced.

The Court will more readily uphold an objection on the ground of the contents of a document, and for this purpose the minister need not go into any detail. But where the minister raises the objection to production on the ground that the documents belong to a class the production of which would be injurious to the public interest, he must describe with some particularity the nature of the class and reasons why they should not be disclosed. For this purpose the proper test to be applied is whether the witholding of a document because it belongs to a particular class is really necessary for the proper functioning of the public service, and the term "public service'''' in this context should not be construed narrowly. In considering a claim to Crown Privilege in relation to a class of documents, the feet that the documents were communicated in confidence to the Crown is a very material consideration, but nevertheless the Court may conclude that the public interest in such confidentiality is outweighed by the public interest that they should be disclosed in the administration of justice.

In Duncan v. Cammel Larid and Co. (1942) A.C. 624 it was stated that though some of the papers have been produced before the Tribunal of Inquiry and though reference was made to those papers in the inquiry report yet a privilege can be claimed. Two reasons were give-one is that special precaution may have been taken to avoid public injury end the other is that portion of the Tribunal''s sittings may have been secret. This ruling was not followed in Conway v. Rimmer.

The doctrine of balancing pr reconciling two public interests was laid down in Conway v. Rimmer (supra). This doctrine was followed in Bogert v. Secretary of State (supra). According to Lord Denning (-What Next in the Law, pp.228-234), the case which started the modern trend was R.V. Lewes (1973) A.C. 388. Previous to that one talked about Crown Privilege but now House of Lords spoke of public interest, thus making public interest the decisive factor. A company in Sussex applied to the Gaming Board for a licence to carry on five Bingo Clubs. In reply to Board''s inquiries Police sent a very confidential letter reporting unfavourably about the Director who somehow or other got hold of a copy thereof and instituted proceedings for criminal libel and claimed that the letter be produced in the interest of justice. Privilege being claimed, the House of Lords held that it was in the public interest to keep the letter confidential and that it should not be disclosed in the criminal proceedings. Lord Reid stated (p. 402):

On balance the public interest clearly require, that documents of this kind should not be disclosed, and that public interest is not affected by the fact that by some wrongful means a copy of such a document has been obtained and published by some person.

Similarly, in D.V. v. N.S.P.C.C. (1978) A.C. 171 a mother of a baby girl being told that the National Society for the Prevention of Cruelty to Children at an allegation that sue had been haltering her child she took proceeding against the N.S.P.C.C. claiming damages and asking to be given the name and -address of the informant and N.S.P.C.C. having told the Court that the information received by it was to be treated as confidential, Lord Denning said (p. 192):

In the scales on the one side I put the reasons why it is in the public interest that the name and address of the informant should be given. There is only one reason which is of any weight at all. It is that it will assist the mother in her action for damages. It will enable her to bring in the informant as a Defendant and to investigate the circumstances in which the information was given....

In the scales on the other side I put the reasons why it is in the public interest the name and address should not be given. The reasons were several the first is that the society should be able to continue its good work, if it is to be compelled to disclose the names, its sources of information will dry up. The second is that confidence should be respected. The law should not compel the society to break faith with those who have placed their trust in it. The third is that grave injustice may be done to the informant if he or she is to be the object of resentment by the mother, or harassed by an action for libel or slander, when she is not shown to have done any wrong at all, but has done all for the best. Weighing these considerations one1 against the other, I think the balance comes down decisively against the name being disclosed.

The House of Lords held that by analogy with the rule relating to police information, the public interest required that the N.S.P.C.C. need not disclose the name of the informant, otherwise the society''s source of information would dry up. The public interest required to be protected was the effective functioning of the organisation working for welfare of children. Lord Bail-sham observed that the categories of, public interest were not closed, and must alter from time to time whether by restriction or extension as social conditions and social legislation developed.

In Sclance Research Counsel v. NSPCC (1979) 1 Q.B. 173, Lord Denning in Court of Appeal said:

In holding the balance...it is very important in the public interest that confidential reports should not be disclosed. Not only would their disclosure be a gross breach of faith with the makers of them, but once the subjects of the reports get to know of the disclosure, it might lead to much disturbance and unrest. Further more, in the long run, if the tribunals made a practice of odering discovery (as they have done in two cases before us) the likely result would be that the makers of the reports would make them in future by word of mouth; or write the reports in a colourless and natural fashion, rendering them useless for the purpose in hand

The holding of the balance was left to the Chairman of the Tribunal in the following words:

The Industrial Tribunal should not order or permit the disclosure of reports or references that have been given and received in confidence except in the very rare cases where, after inspection of a particular document, the Chairman decides that it is essential in the Interests of justice that the confidence should be over-riden: and then only subject to such conditions as to the divulging of it as he shell think fit to impose both for the protection of the maker of the document and the subject of it. He might, for instance, limit the sight of it to Counsel and solicitors on their undertaking that it should go no further.

This was approved by the House of Lord.

In Riddick v. Thames (supra) the Court of Appeal held that the public interest required that the documents which were compulsorily disclosed on discovery should be used only for the purpose of the action in which they were disclosed and on discovery each party impliedly undertook not to use the documents which were disclosed for any ulterior or improper purpose.

Claim by the Crown is net final or conclusive. In Burmah Oil Company v. Bank of England (1979) 3 All E.R. 700 : 1990 A.C. 1090, in 1975 the conditions of the Burmah Oil Company having been precarious, to save it from going into liquidation, it was forced to sell 80,000,000 shares In the British Petroleum Co. to the Bank of England at � 2.30 a share. It turned out to be the lowest price ever. The company''s market soon recovered and in a few months the shares were worth nearly three times as much at � 6.85 a share. The Burmah share holders said that the deal was most unfair and that undue pressure was brought to bear by the Government. In the interlocutory proceedings Burmah wanted to sec the confidential documents passing between the Government and the Bank of England. The Chief Secretary to the Treasury by an affidavit claimed Crown privilege for many of these documents. The House of Lords held that there was no rule of law that a claim by the Crown on the ground of public interest for immunity from production of a class of documents of a high level of public importance was conclusive. If it was likely, or was reasonably probable or a strong positive case was made out, the documents in question contained matter which was material to the issues arising in the case and if or consideration of the ministrial certificate claiming immunity there was a doubt whether the balance of the public interest lay against disclosure (and not merely where it was established that the certificate was probably inaccurate), the Court had a discretion to review the Crown''s claim that the withholding of the document was necessary for the proper functioning of the public service. In reviewing the crown''s claim to privilege in such a case the Court had to balance the corn-ting interests of preventing harm to the State or the public service by disclosure and preventing frustration of the administration of justice by withholding disclosure, and could inspect the documents concerned privately in order to determine where the public interest lay. In case of disclosure, there should be safeguards against the information being spread further than is necessary. The important point is that the House of Lords did test it by weighing the competing interests and they did it by looking at the confidential documents themselves so as to decide where the public interest lay.

Lord Edmaal Devis said in Burmah Oil Company (supra)(at p. 1129):

a Judge may well feel that be cannot profitably embark on such a balancing exercise without himself seeing the disputed documents. May he take a peep?...a judicial peep seems to be justifiable and may, indeed, prove vital if he Judge is to be enabled to arrive at a just conclusion in the matter of discovery.

Lord Scarman added: "the reasons given for protecting the ''secrecy'' of the Government at the level of policy making are two. The first is the need for candour in the advice offered to minister; the second is that the disclosure would create or fan ill-informed or captious public or political criticism''''. Lord Reid in Conway v. Rimmer, thought the second "the most important reason". Indeed he was inclined to discount the candour argument. Lord Dening thought that both reasons were factors legitimately to be put into the balance which had to be struck between the public interest in the proper functioning of the public service (i.e. the executive arm of Government) and the public interest in the administration of justice. Sometimes the public service reasons would be decisive of the issue, but they should never prevent the Court from weighing them against the injury which would be suffered in the administration of justice if the document was not to be disclosed. And the likely injury to the cause of justice must also be assessed and weighed. "Its weight will vary according to the nature of the proceeding in which disclosure is sought, the relevance of the documents, and the degree of likelihood that the document will be of importance in the litigation. In striking the balance the Court may always, if it thinks it necessary, itself inspect the documents''''. In this case the House of Lords by a majority of 4: 1 inspected the documents and did the balancing act and with some hesitancy they decided that the documents were not of such significance that they should be disclosed and that they were not necessary for fairly disposing of the case. In ever case, therefore, it is a matter of balancing the competing public interests involved. The Court can have a peep into the documents privately for taking decision.

In Williams v. Home office (1981)1 All. E.R. 1151 the Q.B. Division held that public interest privilege could not be claimed on the ground that candour of ministers and officials might be inhibited. The candour ground was rejected as in Conway (supra).

While considering the claim of privilege, the Court must be cautious against allowing fishing expeditions. At least two English decisions have cautioned the Court in this regard namely, Gaskin v. Liverpool City Council (1980) 1 W.L.R. 1549 and Neilon v. Laugharne (1981) 1 All. E.R. 829. This is so when a party wants to see all the papers of the other side in order to discover whether he has any cause of action. In such a case public interest would be better served by refusing the discovery as in Neilson''s case (supra). On balancing the competing interests, the conclusion there was:

If this man has any case at all, he must make it out on his own showing supported by witnesses whom he can find himself. He should not be allowed to delve through these statements so as to make out a case which he would not otherwise have.

The law of privilege in India has been developing in line and step with the English law through judicial interpretation of Sections 123, 124 and 162 of the Indian Evidence Act. In Henry Greer Robinson v. State of South Australia AIR 1931 P.C. 254 it has been held that the privilege regarding production of State papers is a narrow one and is to be exercised most sparingly. The principle and foundation of the rule is concern for the public interest and the rule will be applied no further than the attainment of that object requires, and not that the documents arc confidential or official, nor is the fact that their production in the particular litigation prejudice the Crown''s own case or assist that of the other party the overriding reason for non-production. It was accordingly held:

Particularly must it be remembered in this connection that the fact that production of the documents might in the particular litigation prejudice the Crown''s own case or assist that of the other side is no such "plain overriding principle of public interest" as to justify any claim of privilege. The zealous champion of Crown rights may frequently be tempted to take the opposite view particularly in cases where the claim against the Crown seems to him to be harsh or unfair. But such an opposite view is without jurisdiction. In truth the fact that the documents, if produced, might have any such effect upon the fortunes of the litigation is of itself a compelling reason of their production one only to be overborne by the gravest considerations of State policy or security.

Their lordships confirmed the view of Griffiths, C.J., in Marconi''s Wireless Telegraph Company v. The Commonwealth 16 C.L.P. 178 that the Court has in these cases always bad in reserve the power to inquire into the nature of the document for which protection is sought, and to require some indication of the nature of the injury to the State which would follow its production. The existence of such a power, it has been observed, is in no way out of harmony with the reason for the privilege provided that its exercise be carefully guarded so as not to occasion to the State the mischief which the privilege, where it exists, is designed to guard against. Their Lordships also followed the precedent in Queensland Pine Co. Ltd. v. Commonwealth of Australia (1920) St. R. Q. 121.

In The State of Punjab Vs. Sodhi Sukhdev Singh, it had been held that the power to inspect the document could not be exercised where the objection related to ft document having reference to matters of State was raised u/s 123 of the Evidence Act and that under no circumstances the Court could inspect such a document or permit giving secondary evidence of its contents. However, in The State of U.P. Vs. Raj Narain and Others, the view expressed by the Supreme Court was 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 u/s 123. It is said that 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 a noxious class it will leave to the discretion of the head of the department whether to permit its production or not.

In S.P. Gupta Vs. President of India and Others, the question was relating to the disclosure of the correspondence exchanged between the Law Minister, the Chief Justice of Delhi High Court and the Chief Justice of India in regard to non- appointment of O.N. Vehra, S.N. Kumar and S.B. Wad. For the Petitioners it was argued that those documents were relevant and that they should be directed to be disclosed by the Union of India. This claim was resisted by the Solicitor General of India on behalf of Union of India and on behalf of the Law Minister on the ground that they were privileged documents. The privilege against disclosure was twofold-one was that they formed part of the advice tendered by the Council of Ministers to the President and hence by reason of Article 74 cl. (2) of the Constitution the Court was precluded from ordering their disclosure and looking into them and the other was that they were protected against disclosure u/s 123 of the Indian Evidence Act since their disclosure would injure public interest, While dealing with the second question their Lordships considered Section 123 of the Indian Evidence Act. Sections 123 and 162 of the Indian Evidence Act come up for consideration before the Supreme Court in Sodhi Sukhdev Singh''s case. It observed that the principle behind the Section 123 was that a document should not be allowed to be produced in Court if such production would cause injury to the public interest and where a conflict arises between public interest in non-disclosure and private interest in disclosure, the latter must yield to the former. Their Lordships held that it was not right in observing that the interest which comes into conflict with the claim for non-disclosure is the private interest of the litigant in disclosure. It is rather the public interest in fair administration of justice that comes into clash with the public interest sought to be protected by non-disclosure and the Court is called upon to balance these two aspects of public interests and decide which aspect predominates, In Sukhdev Singh (supra) after pointing out that public interest was the sole foundation for the claim for protection u/s 123, the Court referred to three different views. The first view was that documents relating to affairs of State are broadly divisible into two classes, namely, those disclosure of which will cause no injury to public interest and which may therefore be described as innocuous documents and the other the disclosure of which may cause injury to public interest and may therefore be described as noxious documents. To determine whether any particular document was a document relating to the affairs of the State or was a document within the noxious class, their Lordships observed that this introduced a serious impediment in the way of the Court making such determination by holding that the Court cannot for this purpose inspect the document or hold an enquiry into the possible injury to public interest which may result from the disclosure of the document. Their Lordships pointed out the infirmity to this conclusion thus:

Now, if the Court has no power to inspect the document, it is difficult to understand how the Court can find without conducting an enquiry as regards the possible effect of the disclosure of the document upon public interest, that the document is one relating to affairs of State, as ex-hypothesis a document can be said to relate to the affairs of State only if its disclosure will cause injury to public interest. It might be that there are certain classes of documents which ire of such a character that even without inspecting them or conducting an enquiry, it might be possible to say that by virtue of their character, their disclosure would be injurious to public interest and therefore they are documents relating to affairs of State. But, there might be other documents which do not fall within this description and yet whose disclosure might be injurious to public interest and in case of such documents it would not be possible for the Court without inspecting them or at any rate without holding an enquiry, to determine whether their disclosure would be injurious to public interest and they should therefore be classified as documents relating to affairs of State.

The view taken in Sukhdev Singh''s case thus ran into inconsistency and created an illogical situation. It was further observed in Sukhdev Singh (supra) that when an objection against the disclosure of a document is raised u/s 123, the Court must first determine the character of the document and if it comes to the conclusion that the document relates to affairs of State it should leave to the head of the department to decide whether he should permit its production or not. Their Lordships held in S.P. Gupta Para 69:

We are therefore unable to accept the decision in The State of Punjab Vs. Sodhi Sukhdev Singh, (supra) as laying down the correct law on this point. The Court would allow the objection if it finds that the document relates to affairs of State and its disclosure would be injurious to public interest, but on the other hand, if it reaches 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 in the administration of justice in the particular case before it overrides all other aspects of public interest, it will over rule the objection and order disclosure of the document. The basic question to which the Court would therefore have to address itself for the purpose of deciding the validity of the objection would be whether the document relates to affairs of State or in other words, it is of such a character that its disclosure would be against the interest of the State or the public service and if so, whether the public interest in its non-disclosure is so strong that it must prevail over the public interest in the administration of justice and on that account, it should not be allowed to be disclosed. The final decision in regard to the validity of an objection against disclosure raised u/s 123 would always be with the Court by reason of Section 162.

It is further observed that an objection against the disclosure of a document on the ground that it relates to affairs of State may be made before the Court either because it would be against the interest of the State or the public service to disclose its contents or because it belongs to a class of document which in the public interest ought net to be disclosed irrespective of its contents and on the ground that the disclosure of the contents of the document would be injurious to the interest of the State or the public service. It would not be difficult to decide the claim because it would almost invriably be supported by an affidavit made either by the head of the department and if the Minister or the head of the department asserts that to disclose the contents of the document "would or might do to the nation or the public service a grave injury, the Court will be slow to question his opinion or to allow any interest, even that of justice, to prevail over it" unless there can be shown to exist some factor suggesting either lack of good faith or an error of judgment or an error of law on the part of the minister or the head of the department. But, even in such case it is now-settled that the Court is not bound by the statement made by the minister or the head of the department lathe affidavit and it retains the power to balance the injury to the State or the public service against the risk, of injustice, before reaching its decision. Their Lordships then traced the evolution of the law in England and referred to Burmah Oil Co. (supra); Conway v. Rimmer (supra), Reg v. Lewes 1973 AC 338; Commonwealth Lanyon Property Ltd. v. Commonwealth 129 LR 650: Glasgow Corporation v. Central Land Board 1956 SC (HL) 1 ; Sankey v. Whitlam 21 Aus. L.R. 505; Duncan v. Cammel (supra); Neilson v. luugharce (1981) 1 All ER. 835 and laid down the law as follows:

It is settled law, and it was so clearly recognised in Raj Narain''s case (AIR 1973 SC 865) (supra) that there may be classes of documents which public interest requires should not be disclosed, no matter what the individual documents in those classes may contain or in other words, the law recognises that there may be classes of documents which in the public interest should be immune from disclosure. There is one such class of documents which for years has been recognised by the law as entitled in the public interest to be protected against disclosure and that class consists of documents which it is really necessary for the proper functioning of the public service to withhold from disclosure. The documents falling within this class are granted immunity from disclosure not because of their contents but because of the class to which they belong. This class includes cabinet minutes, minutes of discussions between head of departments, high level interdepartment communications and dispatches from ambassadors abroad.... Papers brought into existence for the purpose of preparing a submission o cabinet...and indeed any documents which relate to the framing of gover policy at a high level,..,. ''notes of minutes made by the respective officers on the relevant files, information expressed or reports made and gist of official decisions reaeheo'' in the coorse of determination of questions of policy...all documents concerned with policy-making within department, including, it may be minutes and the like by quite Junior officials and correspondences with the outside bodies.

Their Lordships further observed:

The object of granting immunity to documents of this kind is to ensure the proper working of the government and not to protect the minister and other government servants from criticism however intemperate and unfairly based. Moreover, this reason can have little validity in a democratic society which believes in an open government. It is only through exposure of its functioning that a democratic government can hope to win the trust of the people.... But at the same time it ha conceded that even in a democracy, government at a high level cannot function without some degree of scoreey. No minister or senior public servant can effectively discharge the respon sibitity of his office if every document prepated to enable policies to be formulated was llable to be made public. It is therefore in the interest of the state and necessary for the proper functioning of the public service that some protection be afforded by law to documents belonging to this class.

In para 72 of the report in S.P. Gupta relying in on Conway v. Rimmer (supra) it has been observed:

We have already pointed out that whenever an objection to the disclosure of a document u/s 123 is raised, two questions fall for the determination of the Court, namely, whether the document relates to affairs of State and whether its disclosure would, in the particular case before the Court, be injurious to public interest. The Court in reaching its decision on these two questions has to balance two competing aspects or public interest because the document being one relating to affairs of State, its disclosure would cause some injury to the interest of the State or the proper functioning of the public service and on the other hand if it is not disclosed, the non-disclosure would thwart the administration of justice by keeping back from the Court a material document. There are two aspects of public interest clashing with each other out of which the Court has to decide which predominates.

* * * *

If the Court comes to the conclusion that the balance, the disclosure of the document would cause greater injury to public interest than its non-disclosure, the Court would uphold the objection and not allow the document to be disclosed but if, on the other hand, the Court finds that the balance between competing public interests lies the other way, the Court would order the disclosure of the document. This balancing between the competing aspects of public interest has to be performed by the Court even where an objection to the disclosure of the document is taken on the ground that it belongs to a class of documents which are protected irrespective of their contents because there is no absolute immunity for documents belonging to such class.

Their Lordships further observed:

There is nothing sacrosanct about the immunity which is granted to documents because they belong to a certain class. Class immunity is not absolute or inviolable in all circumstances. (sic) not a rule of law to be applied mechanically in all cases. The principle upon which class immunity is founded is that it would be contrary to public interest to disclose documents belonging to that class, because such disclosure would impair the proper functioning of the public service and this aspect of public interests which requires that justice shall not be denied to any one by withholding relevant evidence. This is a balancing task which has to be performed by the Court in all cases.

* * * *

The Court is not bound by the affidavit made by the minister or the secretary because the minister or the secretary would be concerned primarily and almost exclusively with the assertion of the public interest which would be injured by the disclosure of the documents and be would have very little concern, if at all, with the public interests in the fair administration of justice and in fact he would not be in a position to appreciate and assess the relative importance of the two competing public interest so as to be able to judge as to which in the particular case before the Court should be allowed to prevent. What should be the relative weight to be attached to each aspect of public interest is a question which the Court would be best qualified to decide and not the minister or the secretary.

* * * *

Now obviously the weight of the likely injury to the cause of justice will vary according to the nature of the proceeding in which the disclosure is sought, the relevance of the document and the degree of likelihood that the document will be of importance in the litigation. The particular nature of the proceeding and the importance of the document in the determination of the issues arising in it are vital considerations to be taken into account in determining what are the relevant aspects of public interest which are to he weighed and what the outcome of that weighing process. Perhaps the most striking example of the way in which the nature of the case will bear upon the judicial process of weighing aspect of public interest is afforded by the well recognised rule that where a document is necessary to support the defence of an accused person whose liberty is at stake in a criminal trial, it must be disclosed whatever be the nature of the document, because, as observed by Lord Simon of Glaisdale in D.V. National Society for the Prevention of Cruelty to Children (supra) ''the public interest that no innocent man should be convicted of crime is so powerful that it outweighs the general public interest'' which might be injured by the disclosure of the document.

In the weighing process which the Court has to perform in order to decide which of the two aspects of public interest should be given predominance, the character of the proceeding, the issues arising in it and the likely effect of the documents on the determination of the issues must form vital considerations, for they would affect the relative weight to be given to each of the respective aspects of public interest when placed in the scales.

Thus we find that the law of privilege in India is as advance as in England. It is well settled that the Court has the jurisdiction to have a peep into the document (s) privately, if it considers necessary, for deciding the claim of privilege. The Court''s duty is to disallow any fishing expedition on the part of the party applying for production of the documents and when the claim of privilege is disallowed, the Court is to sec that only such of the documents, statements or parts thereof as would be necessary to be disclosed for the ends of justice should be allowed to be disclosed and no further. The party to whom such document, statement or parts thereof are disclosed, should net be allowed to use the same out of context so us to give any misteading impression and not to use or divulge the same for any other purpose.

In view of the above pronouncements of law on privilege in Raj Narain (supra) and S.R. Gupta (supra), Counsel for both sides agree and we accordingly bold that what was stated about the Courts jurisdiction or p(sic) of inspection in the following sub-paras of para 5 of the judgment in S.B. Choudhury (supra) namely.:

But the jurisdiction of the Court at that stage is limited to the determination of the question whether the documents refer to matters of State. The power of the Court u/s 162 of the Evidence Act to inspect the document is also available only when the document does not refer to matters of State. The right of the head of the department to claim privilege and to give or to withhold permission for the production it also dependent upon the fact whether the document relates to any affairs of state. It is the Court which has got to determine whether the document refers to the affairs of State. If it comes to the conclusion that it is so, the refusal to grant permission by the head of the department will be conclusive and cannot be questioned.

Also u/s 162 the Court will not be entitled to inspect the record. Mr. Ghose''s agreement is that u/s 162 of the Evidence Act when the power is given to ask for the production of the document and when the witness is bound to produce the document, there is no way to find out if the document relates to affair of State other than by looking into the document itself and the Court therefore is entitled to look into the record to out for itself whether it relates to matters of State. But this contention is not supported by the language of Section 162, Evidence Act, which clearly lays down that the Court has no power to inspect the document if it refers to matters of State. The proper procedure therefore will be for the Court to determine from other circumstances without looking into the document and before directing the production of the document if it relates to the matters of State or not.

can no longer be said to be good law.

In view of the law enunciated both in England and in India on the question of Petitioner''s right to the previous statements, we hold that in case a witness already examined before the Inquiry Committee is also examined at the trial and the accused feels the necessity of contradicting the witness u/s 145 of the Indian Evidence Act, he shall have the right to be furnished with the relevant parts of the previous statements of the witnesses so as to dispel any doubt from his mind that relevant materials have been denied to him and consequently fair trial is also denied to him. This will be subject to the claim of privilege by the State in respect of those statements or parts thereof.

On the question of privilege, we have perused the affidavits filed before the trial Court as well as before the Division Bench. We have also considered the proposition submitted by the learned Special Public Prosecutor in the background of the law as discussed herein above. We are of the view that in so far as the relevant parts of the statements are concerned the claim of privilege has to be rejected, but it must be upheld for the rest. The Division Bench desired to know whether the statements of the witnesses examined before the Inquiry Committee could be split up and the portions relating to the circumstances leading to the incident separated from the rest. In the affidavit filed before the trial Court the Home Secretary stated that "the statements of witnesses recorded by the Enquiry Committee with regard to the manner of the incident and security aspect are so intricately intermixed that it is not possible to separate the same between innocuous and noxious categories". In the affidavit dated 16.1.85 filed before the Division Bench the Home Secretary stated "I have re-examined the statements with particular reference to the ''CIRCUMSTANCES'' which led to the unfortunate incident. On careful scrutiny of statements of witness I find that the statements pertaining to the ''CIRCUMSTANCES LEADING TO THE INCIDENT'' refer to one or more of the following points:

(a) Circumstances relating to the situation which posed a threat to Chief Minister life on the basis of interlligence reports which include confidential sources of information and names of potential assasins.

(b) Circumstances relating to steps taken on the basis of the intelligence reports by the Supervisory and Subordinate Police Personnel as well as an assessment of adequacy and affective-ness thereof.

(c) Circumstances relating to training, technique and methodology of the Security personnel detailed for the security of the Chief Minister.

(d) Circumstances relating to the planning of Security arrangements and deployment of officers and men for the purpose.

(e) Circumstances relating to control, co-ordination and direction of security arrangements by the Police Directorate for meticulous execution of security instructions, guidelines and orders.

(f) Circumstances relating to technical failures of security personnel in regard to the present incident, violation of security intrusions, guidelines and orders, if any.

(2) That the statements of witnesses with regard to the above circumstances invariably involve matters relating to Public Security and I am of the view that it is not practicable to separate any part of the statements from parts which pertain to one or more points referred in foregoing paragraph therefore, reiterate my view that disclosure of any part of the proceedings will be detrimental to the public interest.

In weighing and balancing the competing public interests we find the following reasons in favour of non-disclosure, namely, (1) disclosure of security arrangements and policy matters in respect to security will injure the public service and will go against public interest; (2) The statements before the Inquiry Committee having been made in confidence, their disclosure will result in breach of confidence and in future witnesses will hesitate to make statements freely before such committees and consequently public service may suffer: (3) that the accused having already been supplied the documents and materials to which be is entitled under the Code of Criminal Procedure, and the previous statements sought to be called do not straightway go into evidence; and (4) if the Petitioner is allowed to have these statements, in future all accused persons will be entitled to have such statements and it will be impossible to maintain confidence in such services. In favour of disclosure we find: (1) The Petitioner having been in jail and if after examination of a common witness he finds that the witness had deposed differently earlier as to the circumstances under which the incident occurred, and to ascertain the truth he should be confronted with his earlier statement, denial of tie statement may make him feel that fair trial has been been denied to him; (2) if in fact the witness deposed differently before the Inquiry committee than before the Court, it may affect the pursuit of truth and proper adjudication of the case 1 (3) the dictum that the public interest that no innocent man should be convicted of crime is so powerful that it outweighs the general public interest; (4) If only the relevant portions of the previous statements of common witnesses which do not give misleading impression are furnished to the accused only for the purpose of contradicting the witness and for no other purpose, public service or secrecy of the State may not suffer; and (5) the fact that no less a person than the chief Minister of the State is involved as the victim of the attempt justice shall appear to have been done in allowing the relevant portions to be disclosed for the limited purpose, rather than in refusing its disclosure: and (6) disclosure as above will be in consonance with Articles 21 and 39A of the Constitution of India by way of not denying the procedure established by law and promoting justice on the basis of equal opportunity and ensuring that opportunity for securing justice is not denied.

Applying the law as enunciated above, we agree with the learned Special Public Prosecutor that upon a claim of privilege being made the Court is to enter upon an enquiry and perform the balancing exercise after weighing one competing aspect of public interest against other and decide where the balance lies. We also agree that the Parliament clearly intended the privilege to be applicable to a criminal trial and that the law of privilege is an exception to the general rule of admissibility of evidence. We do not wholly agree with the proposition that the inspection of a document can be ordered by the Court only when the Court is not satisfied with the affidavit with regard to one or more of the requirements for privilege. We agree that the Court has the power to inspect the document in respect of which privilege has been claimed but that it is neither mandatory nor obligatory on the Court to first inspect each and every document before it can uphold the claim of the privilege. However, if the Court wants to inspect for the purpose of taking a decision, it would be open for the Court to do so. We do not agree with the submission that the learned Judge, while weighing the scales of public justice for and against disclosure, was rightly of the opinion that the interest of justice would suffer more in case of disclosure than otherwise. At that stage no witness was examined and the need for contradicting the witnesses was yet to arise and without seeing what was the deposition of that particular witness at the enquiry and how he deposed before the Court it would be difficult to hold how far his non-contradiction would affect the proper adjudication of the case. Under such circumstances it would not be possible for the learned Court to have said that the disclosure of the parts of the statements or the statements themselves would not result in any injustice. We also hold that inspection of or peep into the statements for the purpose of deciding the question of privilege by itself would not result in breach of privilege in respect thereto.

While we have great respect for what is stated in the affidavits, under the preventing law we are of the view that without having a peep into, or (sic)pection of, the previous statements, the learned trial Court could not have come to the conclusion that non-disclosure of the relevant portions thereof would not prejudice the Petitioner. We are, however, of the view that the claim of privilege, in so far as the parts of the statements relating to the other two aspects of the enquiry, namely, security lapses and the measures for re-vamping security, need not be disclosed for the purpose of proper adjudication of the case and the claim of privilege in respect to those parts must be upheld, which we hereby do. We are further of the view that the learned trial Judge has the power and jurisdiction to have a peep into or inspect the statements privately so as to ascertain the need for contradiction, and, if possible, separate the parts relating purely to the circumstances leading to the incident in so far as they are separable from the security informations. We allow contents immunity and not class immunity.

For the foregoing reasons we set aside the impugned order and remand the Petitioner''s application dated 17.9.84 for disposal according to the law treating it to be application for calling for only the relevant parts of the previous statements of the common witnesses relating to circumstances leading to the incident in so far as those are separate from the security informations of the enquiry. It will be open for the Petitioner to make fresh applications limiting his prayer to the above extent, as was limited by Mr. Bhattacharyya before this Court. It will be within the jurisdiction and power of the learned trial Judge either on the earlier application or on fresh applications made, to call for the previous statements of common witnesses to be produced separately under sealed covers and to have a peep into or (sic) the statements privately after the particular witness was examined, so us to ascertain the need for contradiction and if possible, separate such parts from the rest and furnish copies of such parts only if it is considered necessary in the interest of Justice. If be finds that there was nothing to be contradicted or such parts cannot be separated from rest without disclosing informations relating to security, the Court may reject the prayer. Mr. Bhattacharyya fairly states before this Court that he shall fully rely on the trial Court in this regard; and he shall have no grievance if the Court found so. The previous statements of a particular witness may be allowed to be produced under sealed cover when the particular witness is examined in Court and if the Petitioner prays that he be furnished copy of previous statement or part thereof to contradict the witness, the Court will inspect the statement privately and, if required for the ends of justice, and if possible without giving misleading impression, separate the part relating to circumstances leading to the incident, not connected with security, and furnish copy thereof to the accused for contradiction u/s 145 Evidence Act, and for no other purpose. Needless to say that the witness may be given the opportunity to explain his statements without disclosing any security information. After making copy of separated parts, the statements shall be returned to the Home Secretary under sealed cover, as we have upheld the privilege as regards those other parts. The learned trial Judge shall decide the applications according to law exercising the discretion conferred on him by law in accordance with the law enunciated and untrammeled by our observations made herein above. It will be for the learned trial Judge to give such directions and impose such conditions as he deems fit in light of the foregoing discussions in the interest of justice.

In the result, (sic) application is allowed to the extent indicated above.