Vr. S. Rm. Ramaswami Chettiar and Others vs K.J. Mahadevan

Krishnaswamy Reddy, J.—This petition has been filed against the order of the ''Fifth Presidency Magistrate, Madras, directing the Deputy

Commissioner of Commercial Taxes (Intelligence), Chepauk, Madras, to produce certain documents. The respondent, Mahadevan, filed a private

complaint against the revision petitioners V.R. S. RM. Ramaswami Chettiar and others u/s 420, Indian Penal Code. The respondent filed an

application before the Fifth Presidency Magistrate to send for the following documents from the office of the Deputy Commissioner of Commercial

Taxes (Intelligence), Chepauk, Madras:

Report of the investigation undertaken by the Department of Commercial Taxes on the background given by the complainant on 21st April,

1966;

A report of the investigation; and

The books of accounts seized by the Department of Commercial Taxes in 1954 from the office of Messrs Chettiar Films both at Madurai and

Trichy and from the houses of the partners of M/s. Chettiar Films, or the copies of the above with reference to the picture ""Aval Yar"".

The Deputy Commercial Tax Officer concerned raised the objection that the documents mentioned above could not be exhibited in court as

they are privileged documents in view of Section 57 of the Madras General Sales Tax Act and Section 124 of the Indian Evidence Act.

The respondent did not press for the production of the first two documents. As regards the documents mentioned in item (3) of the application,

the Fifth Presidency Magistrate overruled the objection raised by the Deputy Commercial Tax Officer and allowed the documents to be exhibited.

Hence this petition.

The learned counsel appearing for the petitioners contended that the documents mentioned in item (3) of the application were concerned in

proceedings relating to the recovery of demand of sales tax and as such they shall be treated as confidential and shall not be disclosed and relies

upon Section 57 of the Madras General Sales Tax Act, 1959. Section 57 reads as follows:-

(1) All particulars contained in any statement made, return furnished or accounts, registers, records or documents produced under the provisions of

this Act or in any evidence given or affidavit or deposition made, in the course of any proceeding under this Act or in any record of any proceeding

relating to the recovery of a demand, prepared for the purposes of this Act shall be treated as confidential and shall not be disclosed.

(2) Nothing contained in Sub-section (1) shall apply to the disclosure of any such particulars-

(i) for the purpose of prosecution under the Indian Penal Code (Central Act 45 of 1860) or under this Act in respect of any such statement, return,

accounts, registers, records, documents, evidence, affidavit or deposition;

It is contended by the respondent that Section 57(1) will not apply to this case by virtue of Clause (2) as the prosecution was under the Indian

Penal Code. This contention is not correct. Clause (2) of Section 57 applies only to prosecutions either under the Indian Penal Code or under the

General Sales Tax Act in respect of any statement, return, accounts, registers, records, documents, evidence, affidavit or deposition made or

produced in the course of the proceedings. It does not apply to offences generally under the Indian Penal Code. The offences committed in respect

of the documents concerned in proceedings either under the Indian Penal Code or under the General Sales Tax Act (hereinafter called the Act) are

alone exempted. As the present prosecution is u/s 420, Indian Penal Code, the exemption provided under Clause (2) of Section 57 will not apply.

But it is clear from the provisions of Section 57, Clause (1), that only those documents which were produced under the provisions of the Act

shall be treated as confidential and shall not be disclosed. In my opinion, Section 57(1) of the Act will not apply to the documents seized. The

protection given u/s 57(1) of the Act will apply to those documents produced voluntarily but not to the documents compulsorily taken or seized

under the provisions of the Act. Section 41 of the Act makes a distinction between production and seizure. Section 41(1) empowers the officer

concerned to require a dealer to produce before him the accounts, documents etc. Under Clause (3) of the same section, if any officer empowered

has reason to suspect that any dealer is attempting to evade the payment of any tax, he may seize the documents, accounts etc. of the dealer. As

already noted, Section 57(1) of the Act applies only to the documents produced u/s 41(1) and not to the documents seized u/s 41(3). The

documents mentioned in item (3) of the application are the documents said to have been seized by the officers. I am, therefore, of the view that

Section 57(1) will not apply to these documents. The learned counsel further contended that they are privileged documents u/s 124 of the Evidence

Act. It is not open to the petitioners who are private parties to claim privilege. The privilege can be claimed only by the public servant concerned.

The revision petition is dismissed.