IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25/09/2002
CORAM
THE HONOURABLE MR. JUSTICE A. KULASEKARAN
Criminal R.C. No. 1499 of 2002
V. Krishnan ... Petitioner
-Vs-
State, rep. by
Central Bureau of Investigation
Chennai ... Respondent
Revision under Section 397 & 401 of Cr.P.C. to set aside the
proceedings of the court below passed by the Additional Special Judge for CBI
cases, Chennai in Crl.MP No. 13 of 2002 in C.C. No. 3 of 1999 as stated
therein.
For Petitioner : Mr. Karthik
For Respondent : Mr. N.Ranganathan, Special Public
Prosecutor, CBI Cases
:ORDER
The petitioner has filed the above revision seeking to set aside the
order passed by the Additional Special Judge for CBI cases, Chennai in Crl.MP
No. 13 of 2002 in C.C. No. 3 of 1999 dismissing the application filed under
Section 91 of Cr.P.C. to summon documents.
2. Heard both sides. The petitioner is the 2nd accused in C.C.
No. 3 of 1999 for the offence under Section 120-B r/w. Section 409, 420,
477-A IPC and Section 13 (2) r/w Section 13 (1) (d) of Prevention of
Corruption Act, 1988 on the file of th nal Special Judge for CBI Cases,
Chennai.
3. The petitioner has filed an application under Section 91 of
Cr.P.C. to summon the document namely “Note to Chairman and Managing
Director’ dated 01-06-1998 regarding the meeting of the Chief Vigilance
Committee (CVC) on 29-05-1998 to discuss the prosecution case by the Chief
Vigilance Officer. The said petition was dismissed by the trial court, hence
this revision.
4. Mr. Karthik, learned counsel appearing for the petitioner
submitted that the document summoned is vital to demolish the evidence of PW1,
who has accorded sanction; that the trial court failed to see that the
sanction is a sacrosanct act, which was accorded without application of mind
by PW1; that denial of suggestion by PW1 pertaining to the document is not a
sufficient reason for dismissing the application; that the respondent/CBI has
not pleaded that production of the said document would cause breach of public
interest; that the document is not a privilege document and that the court
below erroneously dismissed the application misconstruing the provisions of
Section 124 of the Indian Evidence Act.
5. Mr. Renganathan, learned Special Public Prosecutor for CBI
cases appearing for the respondent argued that the note sheet sought to be
summoned are privileged and confidential document, which cannot be summoned;
that PW1 is neither the author of the document nor receipt of it as such he is
not competent to speak about the same; that the document is a communication
between two officers, which is nothing but an official communication as
defined under Section 124 of Indian Evidence Act as such it cannot be
compelled to be produced and prayed for dismissal of the revision.
6. The trial court, after hearing both sides held that the
document in dispute is an official communication between the officials
concerned, hence it is privileged document and it cannot be summoned. The
trial court further found that though the prosecution has not clearly stated
in their counter as to in what manner the public interest would be affected by
disclosure of the document, however held that the document is confidential in
nature as defined under Section 124 of the Indian Evidence Act. The learned
Special Judge has also relied on a decision reported by this Court in
2001-2-Law Weekly (Criminal) Page 643 (K. Sivanandam Vs. State, rep. by
Inspect or of Police, Special Police Establishment Central Bureau of
Investigation Anti-corruption Branch, Chennai – 6) in support of his
conclusion.
7. Now, we look into the relevant provisions of Criminal
Procedure Code and Indian Evidence Act:-
“Section 91 of Cr.P.C. – Summons to Produce document or other thing:-
(1) 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
proceedings under this code by or before such Court or Officer, such Court may
issue a summon, 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.
(2) Any person required under this Section merely to produce a document or
other thing shall be deemed to have complied with the requisition if he causes
such document or thing to be produced instead of attending personally to
produce the same.
(3) Nothing in this Section shall be deemed-
(a) to affect Sections 123 and 124 of the Indian Evidence Act,
1872, or the Bankers, Books Evidence Act, 1891 (13 of 1891), or
(b) to apply to a letter, postcard, telegram or other document or
any parcel or thing in the custody of the postal or telegraph authority.”
Sections 123 & 124 of Indian Evidence Act:-
123. Evidence as to affairs of State – 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 he thinks
fit.
124. Official communications – No public officer shall be compelled
to disclose communications made to him in official confidence, when he
considers that the public interest would suffer by the disclosure.
8. Section 91 of Cr.P.C. confers a wide discretion on the Court
to order production of documents, but the discretion has to be exercised
judicially. The power can be exercised by the Court at any stage at the
request of any party including the accused, but can be done only when the
court, on consideration of all the fa cts and circumstance, finds that the
production of the document or thing called for is necessary or desirable in
the interest of justice and have some relation to or connection with the
subject matter of trial. The court shall satisfy itself whether the document
or thing is necessary for a trial even though the application filed by the
party does not disclose the grounds as to why production of the same is
necessary.
9. It is well settled that summoning of the document is purely
discretionary of the court. The section does not give an absolute right to
the accused to summon all documents. If only when the court on a
consideration of the facts and circumstance of the case, finds that production
of the document is necessary or desirable for the purpose of trial, it shall
summon the same, but not otherwise.
10. In Sub-section 3 of Section 91 of Cr.P.C. it is stated in
unequivocal terms that nothing shall be demed to affect Section 123 and 124 of
the Evidence Act or the banks, books, evidence Act 1891 or apply to a letter,
postcard, telegram or other document or any parcel in the custody of the
postal or telegraph authority. Section 123 and 124 of the Evidence Act can be
understood as mutually exclusive, but they do overlap. The difference between
the two is Section 123 applies only to evidence derived from unpublished
official records relating to any affairs of the state; whereas Section 124
applies to communication made in official confidence where such communications
are in writing or not and whether they relate to any business of the state or
not.
11. Any communication made between two public officers in official
confidence for which privilege is claimed and when it’s production is objected
to on the ground that it would be detrimental to the public interest, the
Court shall desist from compelling its production. As rightly pointed out by
the trial court, the pr osecution has not canvassed in clear terms the
prejudice to public interest. In this case, the communication made between
the respective officers relates to the opinion expressed and an official
decision is reached in the course of determination of the question of
according sanction for which privilege was claimed. It is open to the public
authority that the privilege can be claimed in the interest of efficient
administration and proper functioning of public service though adequately not
bring out the involvement of public interest consequent upon the disclosure of
the document. I rely upon a decision reported in AIR 1977 SC 2201 ( State of
Orissa and others Vs. Jagannath Jona etc.,) wherein in Para-3 it was held
thus:-
“3. We would like to observe that the view which the High Court has taken
in regard to the disclosure of the particular notings is principally based on
the inadequacy of the affidavits filed on behalf of the Government of Orissa.
The High Court has summarised the effect of the various decisions of this
Court which have a direct bearing on the question of privilege and we are in
no doubt that it would not have rejected the State’s claim of privilege in
regard to departmental notings contained in official files, except for the
fact that the affidavits filed on behalf of the Government did not adequately
bring out the involvement of public interest consequent upon the disclosure of
the notings. The judgment of the High Court has therefore to be confined to
the particular facts of the case and cannot be based as a precedent in other
cases for calling upon the Government to produce confidential notings in
official files, if the disclosure thereof is calculated to impair public
interest.
Therefore, I am of the view that the document sought to be summoned is
a privilege document.
12. Now, we look into the aspect whether the document impinge on
the question of guilt or innocence of the accused. In a particular case, the
guilt or innocence of an accused depended on the production of a document in
respect of which privilege is claimed, the Court could overrule the claim of
privilege. Whereas, in the case on hand, the document sought for is relating
to sanction accorded for prosecution, which do not relate to the question of
guilt or innocence of the accused, in other words not relate to alleged
charges. I seek guidance from a decision of the Hon’ble Supreme Court
reported in AIR 1973 SC 2 751 (Kishan Narain Vs. State of Maharashtra)
wherein in Para-7 it was held thus:-
“7. It is not necessary for the purposes of this case to consider
the scope of the powers of the court to examine the documents in respect of
which privilege is claimed under Sections 123, 124 and 125 of the Evidence
Act. Nor do we think that the English decisions on the point would be wholly
apt in the circumstances of this country. In England, the law regarding
evidence is wholly Judge-made law but in this country the duty of the Judge is
to interpret the provisions of the Evidence Act in its application to the
particular circumstances of a case. Whether if in any particular case the
guilt or innocence of an accused depended on the production of a document in
respect of which privilege is claimed the court could overrule the claim of
privilege is not a question which we need consider. That question does not
arise in this case. The documents in respect of which privilege is claimed in
this case do not impinge on the question of guilt or innocence of the accused.
They do not relate to what happened on the 13th and 14th of August 1964. We
do not, therefore, feel it is necessary to consider the decisions in Conway V.
Rimmer, (1968) 1 All ER 874 and Marks Vs. Beyfus, (1890) 25 QBD 494.
The court below has rightly rejected the claim of the petitioner
herein on that ground also.
13. The order passed by the learned trial Judge is well considered
in appreciation of the provisions of law and I do not find any infirmity. The
revision is therefore dismissed.
25-09-2002
rsh
Index : Yes
Internet : Yes
To
1. The Additional Special Judge
for CBI Cases
Chennai
2. The Central Bureau of Investigation
Chennai
3. The Public Prosecutor
High Court