JUDGMENT
G.N. Prasad and B.N. Jha, JJ.
1. This application in revision has been filed by defendants 2 and 3 of title suit No. 52 of 1966 pending in the court of the first Subordinate Judge at Muzaffarpur.
2. It appears that in connection with the consideration of an injunction matter in the aforesaid title suit, the petitioners had applied for calling from the Appellate Assistant Commissioner, Sales-tax, Muzaffarpur, two petitions, dated the 25th June, 1965, purporting to have been filed by defendant 3 before the Sales-tax authority for obtaining (i) Provincial Sales-tax Registration Certificate and (ii) Central Sales-Tax Registration Certificate in the name of Kejriwal Industrial Corporation Sikandarpur, Muzaffarpur. After the disposal of the injunction matter, the petitioners applied to the court below to retain the aforesaid documents which had been called for and produced by the Appellate Assistant Commissioner, Sales-tax, in pursuance of the petitions dated the 25th June, 1965. The case put forward by the petitioners was that the said documents were necessary for use during the trial of the suit on merits.
3. The Appellate Assistant Commissioner, Commercial Taxes, Tirhut Division, Muzaffarpur, however, intimated to the court below that the aforesaid documents were confidential documents and they had been sent to the court under an erroneous conception of the provisions of Section 45 of the Bihar Sales-tax Act, 1959.
4. By the impugned order the court below has held that the documents in question are confidential and they cannot be used in evidence except in the cases envisaged under the provisions of Section 45 of the Act. Upon this view, the court below has directed that the documents in question filed by the Sales-tax Department should be returned “personally to the officer concerned intact in a sealed cover after taking proper receipt”.
5. The relevant provisions of Section 45 upon which the court below has relied are as follows:
Disclosure of information by a public servant.-(1) All particulars contained in any statement made, return furnished or accounts, registers or documents produced in accordance with this Act, or any record of evidence given in the course of any proceedings under this Act other than proceedings before a criminal court, shall, save as is provided in Sub-section (3), be treated as confidential; and notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), no court shall, save as aforesaid, be entitled to require any servant of the Government to produce before it any such statement, return, account, register, document or record or any part thereof, or to give evidence before it in respect thereof.
(2) If, save as is provided in Sub-section (3), any servant of the Government discloses any of the particulars referred to in Sub-section (1), shall be punishable with imprisonment which may extend to six months or with fine or with both.
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It is not necessary to refer to the provisions of Sub-section (3) of Section 45, which are in the nature of exceptions to the provisions contained in Sub-section (1) because Mr. Kai-lash Roy appearing in support of this application has not sought to rely upon any of the exceptional provisions contained in Sub-section (3).
6. It will be noticed that Sub-section (1) of Section 45, which has been extracted above, is in two parts; the first part of the Sub-section refers to the statement etc. which are to be treated as confidential. Reading the first part of Sub-section (1) with Sub-section (2), it is manifest that provision has been made to ensure the confidential character of the statement etc. by making it an offence on the part of the Government servant concerned who discloses any of the particulars referred to in Sub-section (1). The second part of Sub-section (1) imposes a limitation upon the power of the court. Under that provision no court is entitled to ask any servant of the Government to produce before it any of those particulars which have been referred to in the first part of Sub-section (1) or to give evidence before it in respect there of.
7. There can be no doubt upon the provisions of Sub-section (1) of Section 45 that the documents referred to in the two petitions of the petitioners dated the 25th June, 1965, are confidential documents and the court was not entitled to compel their production in court or to require any servant of the Government to give evidence before it in respect thereof. But the provisions relating to the confidential character of the statements and particulars etc. contained in the first part of Sub-section (1) of Section 45 are designed for the benefit or advantage of the persons or assessees making those statements or furnishing those particulars before the Sales-tax authority. If the makers themselves or the assessees themselves require the disclosure of the particulars contained in such of their statements, etc., there cannot be any legitimate ground for invoking the second part of Sub-section (1) of Section 45.
8. It will be noticed that there were similar provisions in the Income-tax Act as amended in 1939. Section 54 of that Act was substantially is the same forms as Section 45 of the Bihar Sales-tax Act, 1959. That Section of the Income-tax Act came up for consideration before a Bench of this Court in Smt. Banarsi Devi v. Smt. Janki Devi Dealing with the confidential nature of the materials produced before the income-tax authority, Choudhary, J., speaking for the Court, observed:-
The object of this Section seems to be that the matters referred to in such documents should be kept
strictly confidential as between the assessee and the Income-tax Department so that the assessee may not hesitate in placing before the department even confidential matters for the purposes of assessment without fear of any disclosure of those matters. If, therefore, such documents are permitted to be put in evidence by persons other than the assessee, the whole object of the Section would be frustrated. In my opinion, this Section disentitles a person other than the assessee to put such documents in evidence so as to disclose the matters contained therein which under the law have to be kept confidential as between the assessee and the Income-tax Department.
The position of the assessee may be different and, on the principle that a person entitled to an advantage can very well waive the same the assessee, if he so likes, can make use of such documents at the risk of disclosing matters which have to be kept confidential for him. But the documents could not be used by a person other than the assessee so as to deprive the assessee of the advantage given to him under the law.
9. It will thus appear that the provisions of Section 45(1) of the Bihar Sales-tax Act are designed for the advantage of the assessee or the maker of the statements in question and such assessee or maker can very well waive the protection which Section 45 affords to his statements or materials. In the instant case the petitions dated the 25th June, 1965, had been made by defendants 2 and 3, and they had been called for at the instance of one of them. The petitioners evidently did not insist upon the retention of the confidential character of their petitions made to the sales-tax authority. In other words, the petitioners wanted to waive the benefit which Section 45 of the Act extended to them. Therefore, following the principle of Smt. Banarsi Devi’s case referred to above, we must hold that the court below was not justified in ordering the return of the documents in question in the present case.
10. Mr. Sarwar Ali appearing on behalf of the State of Bihar put forward the contention that the view contained in Smt. Banarsi Devi’s case must be deemed to have been overruled by their Lordships of the Supreme Court in Charu Chandra Kundu v. Gurupada Ghosh where their Lordships have held that the prohibition imposed against the court by Section 54 of the Income-tax Act is absolute; and the operation of that Section is not obliterated by any waiver by the assessee in whose assessment the evidence is tendered, document produced or record prepared. In our opinion, the authority of the Bench decision of this Court in
Smt. Banarsi Devi’s case has not in any way been impaired by the decision of their Lordships of the Supreme Court in Charu Chandra Kundu’s case . In the first place, their Lordships have made it clear that they expressed no opinion upon the correctness or otherwise of cases of which Banarsi Devi’s case is an example. Secondly, it will be observed that in the case which went up to their Lordships of the Supreme Court an application for production of the documents from the office of the Commissioner of Income-tax had been made by the appellant, whereas the depositions in question had been given before the income-tax authority by the respondent; and the appellant before the Supreme Court could not possibly have waived the benefit which under Section 54 of the Income-tax Act was a benefit that enured for the advantage of the respondent in the Supreme Court. In the present case, the very person who made the applications before the sales-tax authority, has asked for their production so that he might be in a position to use them during the trial of the suit. In other words, the petitioners have sought to waive the benefit of Section 45 of the Sales-tax Act and they are competent to waive such benefit if they consider it necessary. In such a case the limitation which Sub-section (1) of Section 45 imposes upon the servant
of the Government can not possibly apply. It is not really a case, where the disclosure of any of the particulars referred to in Sub-section (1) is being made by any servant of the Government. The disclosure, if any, is being made at the instance of the very person for whose benefit the provision relating to the confidential nature of the documents etc. has been made in Sub-section (I) of Section 45, that is to say,
Sub-section (2) of Section 45 cannot possibly come into play, because the disclosure, if any, is being made not by any servant of the Government but by or at the instance of the petitioners themselves.
11. Mr. Kailash Roy also contended that Sub-section (1) of Section 45 does not really come into play at this stage because the documents in question are already before the court and it is not a case of requiring any servant of the Government to produce them before it or to give evidence before it in respect thereof. The contention of Mr. Roy is that the present objection on behalf of the sales-tax department might have been validly raised at the initial stage, that is to say, before the documents in question had been forwarded to the court. But having once forwarded those documents to the court the sales-tax authority cannot take shelter under Section 45(1) of the Act. It is not necessary to give a concluded opinion on this point, because the view which we have taken on the authority of Banarsi Devi’s case is sufficient to dispose of the present application.
12. For the reasons given above, the order of the learned Subordinate Judge dated the 3rd September, 1966, in respect of the two documents in question is set aside and it is directed that the documents in question will be retained in court so that if the petitioners so desire they may tender them in evidence on their behalf at the trial of the title suit. The application succeeds, but in the circumstances of the present case, there will be no order as to costs.