R. Ramasrinivasan vs P. Shanmugham

M. Anantanarayanan, C.J.—The proceeding before us is a simple one in essence, and the facts are within a restricted scope. But it involves

one question of some significance, on the principles which have to be applied when the State claims privilege u/s 123 of the Indian Evidence Act

read with Section 162 of that Act, with regard to the production of a record, viz. in this case, the record by a police officer, under departmental

instructions, of a public speech made by a citizen.

Very briefly stated, the affidavit of the petitioner (Ramasrinivasan) is to the effect that the respondent (P. Shanmugbam, M. L. A.) addressed a

public meeting on 5th May 1968 at Pondicherry, during the course of which meeting, inter alia, he referred to the actions of a certain Sri Farook

Maricar, while that gentleman was Chief Minister of the State, in wreaking vengeance upon those who were responsible for his downfall. He is

then supposed to have said, according to the affidavit of the petitioner, that ""the case of Jeevarathina Udayar is one of such instances"". It is not

disputed that at that time, there was a case against a certain Jeevarathina Udayar, with respect to a very grave offence, pending committal enquiry

in the court of the First Class Magistrate, Pondicherry. It is claimed that this constitutes grave contempt of Court, as such a statement is calculated

to affect the administration of justice.

In the counter affidavit of the respondent he denies that he made any such statement or reference, and, on the contrary, he claims that some one

in the crowd asked him (the speaker) a question about Jeevarathina Udayar''s case being another instance of the wreaking of vengeance, that he

then explained that the matter was pending before a court of law and sub judice, and that it would not be proper to discuss it at a public meeting.

As it was brought to our notice that, under the departmental instructions of the Inspector General of Police, Pondicherry, an officer had been

deputed to attend this meeting, and to make a shorthand transcript of this speech, notice was issued to that authority, viz. the Inspector General to

produce this transcript. The learned Public Prosecutor for Pondicherry, appearing for the Inspector General of Police, has now produced the

transcript, in a sealed cover, and pleaded privilege with regard to its production, u/s 123 and Section 162 of the Indian Evidence Act.

The scope of these two sections, taken together, has been clarified by their Lordships of the Supreme Court in The State of Punjab Vs. Sodhi

Sukhdev Singh, . That was also a case in which Section 123 and Section 162 of the Evidence Act had to be read together, and applied to the

relevant facts. The Supreme Court observed that the court was not merely competent, but was also bound, to hold an enquiry to determine the

validity of the objections to production, and that this necessarily involved the enquiry into the question whether the evidence related to an affair of

State u/s 123 or not. If the court came to the conclusion that the document related to an affair of State, the court should leave it to the Head of the

department to decide whether he should permit its production or not. Their Lordships also made certain observations upon the difference between

the law in this country and the law in the United Kingdom, in this respect.

We might immediately state, even apart from the nature of this particular document, which we have scrutinised for the initial purpose of testing

the validity of the objection urged by the State, that It would be far too broad a claim to make, that officers deputed to transcribe in shorthand the

speeches of persons at public meetings, under departmental Instructions, should generally be permitted through the procedure prescribed under

statute, to object to the production of the transcript as relating to affairs of State. Public meetings are held very frequently, in this country, and

addressed by a variety of persons, upon all conceivable topics; many of these meetings relate to public questions, which are, in no conceivable

sense, ''affairs of State''. For their own purpose, the authorities may desire to have the transcripts of speeches made at such public meetings, and, it

would be too wide a proposition, altogether, to lay down that every such transcript, relates to, or embodies, matters connected with ''affairs of

States'', Certainly, certain speeches at certain meetings may be of this character, and conceivably the disclosure of transcripts of such cases which

might be prejudicial. It is even conceivable that in an otherwise innocuous or unrelated speech, some passage might occur, which touches upon

affairs of State, the disclosure of which might occasion prejudice. The State could well claim in such a case that that part of the document is

privileged. In the present case, the speech related entirely to matters of public interest, concerned with the record of administration of a Ministry,

which every citizen had the right to criticise. There is nothing secret about the speech, or the averments in his speech, nor docs any part of it relate

to a topic that could be segregated as an affair of State. The mere fact that the record was made by a police officer, and confidentially forwarded

to his superior, would not render the document privileged u/s 123 read with Section 162 of the Evidence Act.

Mr. Mohan Kumaramangalam for the respondent has also drawn our attention to the decision of the House of Lords in Conway v. Rihoor,

1988 2 W L R 998, and the situation at law, even in the United Kingdom now appears to have undergone a considerable alteration; the situation

now is that the documents have to be produced for inspection by the court, and that disclosure would be ordered if the Court was satisfied that

there was no prejudice to public interest, or, the possibility of such prejudice. Accordingly, without enunciating any general proposition to cover all

such transcripts or reports, we hold that, on the facts of this particular case, and having regard to this particular document, privilege cannot be

claimed for it u/s 123 and Section 162 of the Evidence Act, T.

We may now proceed to consider the part of the document which concerns the alleged contempt of court of justice, Here, the report

substantiates, more or less, the claim made by the respondent in his counter affidavit. The case of Mr. Jeevarathna Udayar is no doubt referred to,

and the reference occurs in the context of some alleged action taken by Mr. Farook Maricar to wreak vengeance against those who worked for

his downfall. But the speaker explicitly declares that the case itself is in court, pending trial, and sub judice, and that he would, therefore, refrain

from any discussion about it, or any further reference, from a public platform.

Under those circumstances, and in view of the explicit cautionary trends in the speech, we do not think that the interests of justice require that we

should proceed further with this action, invoking our jurisdiction relating to contempt of court or contempt of the administration of justice. We are

satisfied that the speaker, in this case, was aware of his responsibilities, and that he declined to make any further comment, in view of the pendency

of the case in a criminal court.

The proceeding is accordingly dismissed. No coats.