State vs M.A.Beg and others

This application in revision is directed against an order passed by the Additional Sessions Judge Jammu in the trial of Kashmir Conspiracy case

calling for a particular document for inspection by the court.

It appears that the accused filed an application before the court on 20101962 praying that the document question, which happened to be the

village Crime Register should be called for and the accused may be allowed to inspect the same. The reason given for the inspection and the

production of the document by the accused was that this document was necessary to lay a foundation for the cross examination of a witness by the

accused in order impeach his credit by showing his antecedents. The application was resisted by the prosecution which filed rejoinder on

22101962. Another application was filed by the accused followed by a rejoinder on behalf of the State. The court after considering the application

of the accused and the objections filed by the prosecution ordered the D. I. G. Kashmir to produce the document in question for inspection by the

court. It is against this order that the present petition has been preferred.

The order under revision has been assailed before me mainly on two grounds :

In the first place, Mr. Advocate General argued that the court below was wrong in deferring the question as to whether the document was a

privilege document till after the inspection of the document itself. The contention of the Advocate General was that when an objection regarding the

document being privileged and hit by Section 123 of the Evidence Act was raised, it was the duty of the court to have embarked upon a summary

enquiry to determine the question as to which class or character the document belonged and it was only after the court had found that the

document was not privileged or was not one which related to the affairs of the State, that it could have directed its production. Mr. Har Prashad,

who followed the Advocate General argued what appears to be the other ground on which the order impugned has been assailed. His submission

was that the court had improperly exercised its discretion in calling for the document without determining first of all whether the document was

relevant at all. The contention put forward in a more concrete shape was that the attempt of the court in calling for a document was to allow the

accused a chance of making a roving enquiry into the facts which have not been ascertained but which they wanted to ascertain from the document

itself and which fact may or may not be supported by that document. I would like to take this argument first. The accused in their application had

clearly revealed that they had reasons to believe that there were certain serious or tries in the document concerned against the witness which may

be helpful for cross examining the witness. The learned Judge after considering the objection raised by the ether side and having regard to the

circumstance of the case thought it fair to order for the production of the document subject, however, to the question of its admissibility and other

legal objections which may be taken. The learned Judge has exercised his discretion under section 94 Cr. P. C. read with Section 162 of the

Evidence Act calling for the document from the D. I. G. Kashmir and it cannot be said that the discretion exercised by him was absolutely arbitrary

or capricious so as to warrant interference by this court in revision against an interlocutory order passed by the trial court and more particularly

when the court below had called for the document subject to the objections which may be raised by the party concerned. In these circumstances, I

am unable to agree with Mr. Har Prashad that the order of the court below summoning the document suffers from such an infirmity so as to

warrant interference by this court. The contention on this score is, therefore, overruled. The learned Judge has clearly stated in his order that after

the document is produced, it will be admitted in evidence only after hearing the objections of the other side and arguments of the parties will be

heard about the various points which arise for consideration.

As regards the other contention raised by the Advocate General which is with respect to the admissibility of the document concerned, I am in

agreement with the argument of the learned counsel for the accused that the objection taken by the Advocate General is absolutely premature. It

has been now settled by the decision of the Supreme Court reported in A. 1. R. 1961 Supreme Court, 493 that where an objection is raised

regarding the document being a privileged one under Section 123 of the Evidence Act, the court has no jurisdiction to inspect the document first

and then to determine the question as to whether the document is privilege one or not. It has been pointed out by their Lordships in that case that

the proper course in such matters is to first hold an enquiry and then determine the character, class or the nature of the document concerned and if

the court finds that the document belongs to the ""noxious"" class it may stay its hands and refer the document to the Head of department and leave it

to its discretion to produce the document. If. however, the court finds that the document is not privileged and does not relate to the affairs of the

State, it can direct the document to be tendered in evidence and overrule the objection on that score. Their Lordships have also indicated the

scope and extent of the enquiry to be held by the courts in such cases. It is also true that the learned Additional Sessions Judge in this case has

observed that he would determine the question as to whether the document related to the affairs of the State only after inspecting the same. This

observation is clearly illegal and directly in contravention of the decision of the Supreme Court referred to above. But I think that the stage for this

determination has not yet come. Under Section 162 Evidence Act a court has got ample powers to direct a witness to produce a document, and

once orders for the production of the document are passed, the witness concerned has to bring the document in court and produce rhe same

subject to the objections of the other side. The objections will be considered by the court and if the objection relates to one under Section 123 of

the Evidence Act, then the court cannot inspect the document before determining the question as to whether the document is a privileged document

or not. Thus it is manifest that this stage will arise only after the document is brought before the court by the D. I. G Kashmir as directed by the

learned Additional Sessions Judge. In A. I. R. 1961 S. C, 493, their Lordships of the Supreme Court have observed as follows:

The first clause of Section 1962 requires that a witness summoned to produce a document must bring it to the court and then raise an objection

against either its production or its admissibility. It also authorises the court, and indeed makes it its obligation to decide the validity of either or both

of the said objections. It is significant that the objections to the production or admissibility of evidence specified in Section 162 relates to all claims

of privilege provided by the relevant Sections of Chapter IX of Part III of the Act. Section 123 is only one of such privileges so that the jurisdiction

given to the court to decide the validity of the objections covers not only the objections raised under Section 123 but all other objections as well.

These observations clearly indicate that the validity of the objections would arise only when the document is summoned and brought before the

court. In the present case, the learned Additional Sessions Judge has only directed the D. I G. Kashmir to produce the document and the

document has not yet been produced before the court. Therefore, the stage regarding the objections relating to the document being privileged or

not has not yet reached. As this stage, has not yet been reached, the revision before me on this ground is clearly premature. I would, however,

indicate to the learned Judge that if an objection is taken by the head of department on the score that the document relates to the affairs of the

State, he should follow the procedure as laid down in the case referred to above, and particularly I would like to draw the attention of the learned

Additional Sessions Judge to the following observations of their Lordships of the Supreme court, made in the case referred to above.

If the privileged document cannot be inspected the court may well take other collateral evidence to determine its character or class. In other

words, the jurisdiction conferred on the court to deal with the validity of an objection as to the production of a document conferred by the first

clause is not illusory or nomine ; it has to be exercised in cases of objections raised under Section 123 also by calling for evidence permissible in

that behalf. It is perfectly true that in holding an enquiry into the validity of the objection under Section 123 the court cannot permit any evidence

about the contents of the document. If the document cannot be inspected its contents cannot indirectly be proved ; but that is not to say that other

collateral evidence cannot be produced which may assist the court in determining the validity of the objection.

x x x x x

But the court is competent and indeed is bound to hold a preliminary enquiry and determine the validity of the objections to its production, and that

necessarily involves an enquiry into the question as to whether the evidence relates to an affair of State under Section 123 or not.

The court will not be entitled to embark upon an enquiry into the broad question as to whether the disclosure of the contents of the document may

or may not cause injury to the public interest. What the court has to see is what is the nature and the character of the document and whether it

relates to the affairs of the state. This conclusion can be reached without inspecting the document and on the affidavits and the other materials that

are already on the record and in case the court feels necessary, it may call for further affidavits and may also summon the Head of the department

for cross examination on this point. But the enquiry will be concerned only to this question alone. In the view that I have taken, it is manifest that

while the learned Additional Sessions Judge had got ample powers to call for the document and direct the D. I. G. Kashmir to produce the

document in court, he could not have in general terms passed an order for producing the document for the purpose of inspection by the court

because an order for production under Section 162 must contemplate the contingencies mention in that Section and one of such contingency is that

if the document is one which is claimed to be privileged, it cannot be inspected by the court. At any rate, as the learned Sessions Judge has stated

in a part of his order that the D. I. G. Kashmir can make his submissions regarding the objections that he wishes to take, the order of production

will be read really as an order for production of the document subject to the objections being taken by the other side.

I might further point it out that while determining the question as to the nature of the document, the court must be mindful of the fact that the

privilege which is claimed by the state on by the Head of Department should not be utilized to override the considerations other than those of

public interest under the mere garb of affairs of State.

In this connection, their Lordships of the Supreme court have observed in the case referred to above as follows:

Care has, however, to be taken to see that interest other than that of the public do not masquerade in the garb of the public interest and take

undue advantage of the provisions of S. 123.

For the reasons given above, the order of the learned Additional Sessions Judge, Jammu calling for the document from the D. I. G. Kashmir is

upheld and the application is disposed of with the observations made above.